Blueprint
Shengxin (Shanghai) Management Consulting Limited
Partnership
Senior Secured Promissory Note
$2,981,259.26
|
Issue Date:
March 30, 2018
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For Value Received, and subject
to the terms and conditions set forth herein, Shengxin (Shanghai)
Management Consulting Limited Partnership (“SMC”) hereby unconditionally
promises to pay to the order of ACM Research (Shanghai), Inc. or
its assigns (the “Holder,” and together with SMC,
the “Parties”),
the principal amount of $2,981,259.26 (the “Loan”), together with all accrued
interest thereon, as provided in this Senior Secured Promissory
Note (this “Note”). This Note is being issued
pursuant to the terms of a Warrant Exercise Agreement, dated as of
the Issue Date hereof, by and among SMC, the Holder and ACM
Research, Inc. (the “Warrant
Exercise Agreement”).
1. Definitions.
Capitalized terms used herein shall have the meanings set forth in
this Section
1.
“Default” means any of the events
specified in Section 5 that constitutes an Event
of Default or that, upon the giving of notice, the lapse of time or
both pursuant to Section 5 would, unless cured or
waived, become an Event of Default.
“Event of Default” has the meaning
set forth in Section 5.
“Law,” as to any person, means any
law (including common law), statute, ordinance, treaty, rule,
regulation, policy or requirement (including any authoritative
interpretation thereon) of any government of any nation or any
political subdivision thereof (whether at the national, state,
territorial, provincial, municipal or any other level), or any
agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of, or
pertaining to, government, whether now or hereafter in effect, in
each case, applicable to or binding on such person or any of its
properties or to which such person or any of its properties is
subject.
“Maturity Date” means the earlier
of (a) August 17, 2023 and (b) the date on which all amounts under
this Note shall become due and payable pursuant to Section 6.
2. Payment
Dates; Optional Prepayments.
2.1 Payment
Dates. The aggregate unpaid
amount of the Loan, all accrued and unpaid interest on the Loan,
and all other amounts payable under this Note shall be due and
payable on the Maturity Date.
2.2 Optional
Prepayments. SMC may prepay the
Loan in whole or in part at any time or from time to time without
penalty or premium by paying the amount of the Loan to be prepaid
together with accrued interest thereon to the date of prepayment.
No prepaid amount may be reborrowed.
2.3 Offset.
Upon the occurrence of an Event of Default, the Holder may, by
notice to SMC, elect to apply any amount that is payable under this
Note and that is the subject of such Event of Default to pay by
offset all or a portion of the amounts outstanding under the SMC
Investment (as defined in the Warrant Exercise Agreement), whether
then due or by prepayment.
3. Interest.
3.1 Interest
Rate. Except as otherwise
provided herein, the outstanding amount of the Loan shall bear
interest at a rate of 3.01% per annum from the date the Loan was
made until the Loan is paid in full, whether at the Maturity Date,
upon acceleration, by prepayment or otherwise.
3.2 Default
Interest. If any amount payable
hereunder is not paid when due (without regard to any applicable
grace periods), whether at the Maturity Date, by acceleration, or
otherwise, such overdue amount shall bear interest at the rate of
12.0% per annum from the date of such non-payment until such amount
is paid in full.
3.3 Computation
of Interest. All computations
of interest shall be made on the basis of a year of 365 days and
the actual number of days elapsed. Interest shall accrue on the
Loan on the day it is made, and shall not accrue on the Loan for
the day on which it is paid.
3.4 Interest
Rate Limitation. If at any time
and for any reason whatsoever, the interest rate payable on the
Loan shall exceed the maximum rate of interest permitted to be
charged by the Holder to SMC under applicable Law, such interest
rate shall be reduced automatically to the maximum rate of interest
permitted to be charged under applicable Law.
4. Payment
Mechanics. Subject to
Subsection
2.3,
payment of the Loan and interest thereon shall be made in lawful
money of the United States of America no later than 5:00 p.m.,
Pacific time, on the date on which such payment is due by wire
transfer of immediately available funds to the Holder’s
account at a bank specified by the Holder in writing to SMC from
time to time.
5. Events of
Default. The occurrence and
continuance of any of the following shall constitute an Event of
Default hereunder:
5.1 Failure
to Pay. SMC fails to pay (a)
any amount of the Loan when due or (b) interest or any other amount
when due and such failure continues for five
days.
(a) SMC commences any case, proceeding or other action
(i) under any existing or future Law relating to bankruptcy,
insolvency, reorganization, or other relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts or (ii)
seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part
of its assets, or SMC makes a general assignment for the benefit of
its creditors.
(b) There is commenced against SMC any case,
proceeding or other action of a nature referred to in
Subsection
5.2(a)
that (i) results in the entry of an
order for relief or any such adjudication or appointment or (ii)
remains undismissed, undischarged or unbonded for a period of
thirty days.
(c) There is commenced against SMC any case,
proceeding or other action seeking issuance of a warrant of
attachment, execution or similar process against all or any
substantial part of its assets that results in the entry of an
order for any such relief that has not been vacated, discharged, or
stayed or bonded pending appeal within thirty days from the entry
thereof.
(d) SMC
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in Subsection
5.2(a),
(b)
or (c).
(e) SMC
is generally not able to, or shall be unable to, or admits in
writing its inability to, pay its debts as they become
due.
5.3 Judgments.
One or more judgments or decrees shall be entered against SMC and
all of such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within thirty days from
the entry thereof.
5.4 Breach.
SMC defaults in any material respect in its performance of any
material covenant or obligation required to be performed or
satisfied by it under this Note or the Warrant Exercise
Agreement.
6. Remedies.
Upon the occurrence of any Event of Default and at any time
thereafter during the continuance of such Event of Default, the
Holder may at its option, by written notice to SMC, declare the
entire amount of the Loan, together with all accrued interest
thereon and all other amounts payable hereunder, immediately due
and payable, provided, however,
that, if an Event of Default described
in Subsection
5.2
shall occur, the amount of the Loan,
and accrued interest thereon, shall become immediately due and
payable without any notice, declaration or other act on the part of
the Holder.
7. Security.
As security for its obligations hereunder and under the Warrant
Exercise Agreement, SMC has granted to the Holder a continuing
security interest in all right, title and interest in and to the
Warrant Shares (as defined in the Warrant Exercise Agreement). The
existence of such security shall not limit any other rights or
remedies that the Holder may have in an Event of Default hereunder.
SMC hereby irrevocably authorizes the Holder at any time and from
time to time to file in any relevant jurisdiction any financing
statements and amendments thereto that contain the information
required by Article 9 of the Uniform Commercial Code of each
applicable jurisdiction for the filing of any financing statement
or amendment relating to the collateral, including any financing or
continuation statements or other documents for the purpose of
perfecting, confirming, continuing, enforcing or protecting the
security interest granted by SMC hereunder, without the signature
of SMC where permitted by law.
8. Miscellaneous.
8.1 Notices.
All notices, requests or other communications required or permitted
to be delivered hereunder shall be delivered in writing and in
accordance with the Warrant Exercise Agreement.
8.2 Governing
Law. This Note and any claim,
controversy, dispute or cause of action (whether in contract or
tort or otherwise) based upon, arising out of or relating to this
Note and the transactions contemplated hereby shall be governed by
the laws of the State of Delaware.
8.3 Submission to
Jurisdiction.
(a) SMC
hereby irrevocably and unconditionally (i) agrees that any legal
action, suit or proceeding arising out of or relating to this Note
may be brought in the state courts of Delaware and the U.S.
District Court for the District of Delaware and (ii) submits to the
jurisdiction of any such court in any such action, suit or
proceeding. Final judgment against SMC in any action, suit or
proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment.
(b) Nothing
in this Subsection
8.3
shall affect the right of the Holder
to (i) commence legal proceedings or otherwise sue SMC in any other
court having jurisdiction over SMC or (ii) serve process upon SMC
in any manner authorized by the laws of any such
jurisdiction.
8.4 Venue.
SMC irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, any objection that it may now or
hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Note in any court referred to
in Subsection
8.3
and the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
8.5 Waiver
of Jury Trial. SMC HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS NOTE OR THE
TRANSACTIONS CONTEMPLATED HEREBY WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY.
8.6 Successors
and Assigns. This Note may not
be assigned or transferred by the Holder or SMC without the prior
written consent of the other Party. This Note shall inure to the
benefit of, and be binding upon, the Parties and their permitted
assigns.
8.7 Waiver
of Notice. SMC hereby waives
demand for payment, presentment for payment, protest, notice of
payment, notice of dishonor, notice of nonpayment, notice of
acceleration of maturity and diligence in taking any action to
collect sums owing hereunder.
8.8 Interpretation.
For purposes of this Note: (a) the words “include” and
“including” shall be deemed to be followed by the words
“without limitation”; (b) the word “or” is
not exclusive; and (c) the words “herein,”
“hereof,” “hereby,” “hereto”
and “hereunder” refer to this Note as a whole. The
definitions given for any defined terms in this Note shall apply
equally to both the singular and plural forms of the terms defined.
Unless the context otherwise requires, references herein (x) to an
agreement, instrument or other document mean such agreement,
instrument or other document as amended, supplemented and modified
from time to time to the extent permitted by the provisions thereof
and (y) to a statute mean such statute as amended from time to time
and include any successor legislation thereto and any regulations
promulgated thereunder. This Note shall be construed without regard
to any presumption or rule requiring construction or interpretation
against the Party drafting an instrument or causing any instrument
to be drafted.
8.9 Amendments.
No term of this Note may be waived, modified or amended except by
an instrument in writing signed by both of the Parties. Any waiver
of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
8.10 Headings.
The headings of the various Sections and Subsections herein are for
reference only and shall not define, modify, expand or limit any of
the terms or provisions hereof.
8.11 No
Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising on the part of the
Holder, of any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided
by law.
8.12 Electronic
Execution. The words
“execution,” “signed,”
“signature,” and words of similar import in this Note
shall be deemed to include electronic or digital signatures or the
keeping of records in electronic form, each of which shall be of
the same effect, validity and enforceability as manually executed
signatures or a paper-based recordkeeping system, as the case may
be, to the extent and as provided for under applicable law,
including the Electronic Signatures in Global and National Commerce
Act of 2000 (15 USC § 7001 et seq.), the Electronic Signatures
and Records Act of 1999 (N.Y. State Tech. Law §§
301-309), or any other similar state laws based on the Uniform
Electronic Transactions Act.
8.13 Severability.
If any term or provision of this Note is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of
this Note or invalidate or render unenforceable such term or
provision in any other jurisdiction.
In Witness Whereof, SMC has
caused this Note to be signed in its name as of the Issue Date
written above.
Shengxin (Shanghai) Management Consulting Limited
Partnership
Name:
Jian Wang
Title:
General Partner