UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6–K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the Month of October 2020
Commission File Number 001-31583
NAM TAI PROPERTY INC.
(Translation of registrant’s name into English)
Namtai Industrial Estate
No. 2 Namtai Road, Gushu Community, Xixiang Township
Baoan District, Shenzhen City, Guangdong Province
People’s Republic of China
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes ☐ No ☒
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b); 82- .
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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NAM TAI PROPERTY INC. |
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Date: October 5, 2020 |
By: |
/s/ Wai Hang Wan |
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Name: Wai Hang Wan |
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Title: Chief Financial Officer |
Explanatory Note
Purchase Agreement and Private Placement
On October 5, 2020, the Company entered into a Securities Purchase Agreement (each, a “Purchase Agreement”) with each of Greater Sail Ltd., a wholly owned subsidiary of Kaisa Group Holdings Ltd. (“Greater Sail”) and West Ridge Investment Company Limited, an affiliate of a large-scale integrated financial group based in Hong Kong (“West Ridge”), pursuant to which the Company, in a private placement, issued and sold to Greater Sail and West Ridge 16,051,219 and 2,603,366 common shares of the Company, respectively, par value $0.01 per share (the “Shares”), at a price of $ 9.15 per Share (the “Private Placement”). The Private Placement yielded net proceeds of approximately $170 million.
The Company expects the net proceeds of the Private Placement will be used for paying down debt that is at risk for cancellation or early repayment demands, and increase its financial flexibility.
Pursuant to the Purchase Agreement with Greater Sail, (i) until the Voting Sunset Date (as defined in the Purchase Agreement with Greater Sail), Greater Sail agrees to vote, or cause to be voted, all Shares beneficially owned by Greater Sail and its affiliates, which were newly acquired in the Private Placement, either (at the sole discretion of Greater Sail) (a) affirmatively in favor of the election of each director designee nominated by the Board to serve as a Director or (b) in the same proportion that the Common Shares not beneficially owned by Greater Sail are voted for or against, or abstains with respect to each director designee nominated by the Board to serve as a Director and (ii) until the Sunset Date (as defined in such Purchase Agreement), Greater Sail agrees to transfer restrictions with respect to its shares and a standstill provision, which, among other things and subject to certain right Greater Sail has, bars Greater Sail and its affiliates from acquiring in excess of 1.1% of the Shares, making announcements regarding extraordinary transactions, or otherwise taking actions to cause a change of control of the Company to occur.
In connection with the Private Placement, the Company also entered into a Registration Rights Agreement, dated October 5, 2020, with Greater Sail and West Ridge (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, and subject to the applicable provisions of that agreement (capitalized terms used in this paragraph and not otherwise defined herein have the meanings defined in the Registration Rights Agreement), the holders of the Shares have the following rights:
• Demand registration rights. Each holder possessing collectively at least twenty percent of the outstanding registrable securities has the right to request the Company to effect a registration for their shares. The Company is not obligated to effect more than four demand registrations that have been declared and ordered effective.
• Piggyback registration rights. If the Company proposes to file a registration statement for a public offering of its securities, it must afford each holder an opportunity to participate in that offering. The Company has the right to terminate or withdraw any registration initiated by it under the piggyback registration rights prior to the effectiveness of such registration.
• Form F-3 registration rights. If the Company qualifies for registration on Form F-3, each holder possessing collectively at least ten percent of the outstanding registrable securities may request it to file a registration statement on Form F-3.
The Registration Rights Agreement shall become effective immediately at the Effective Date, and shall automatically terminate eight years after the Effective Date, unless earlier terminated with the written consent of the Company and shareholders who hold a majority of the outstanding registrable securities.
The foregoing descriptions of the terms of the Purchase Agreement with Greater Sail and the Registration Rights Agreement (collectively, and together with any other documents contemplated thereby or necessary or appropriate in connection therewith, the “Transaction Documents”) are qualified in their entirety by reference to the full texts of such agreements, which are filed as Exhibits 99.2 and 99.3 to this Current Report on Form 6-K and incorporated herein by reference.
The representations, warranties and covenants contained in the Purchase Agreement with Greater Sail and the Registration Rights Agreement were made solely for the benefit of the parties to the Purchase Agreement with Greater Sail and Registration Rights Agreement and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Purchase Agreement with Greater Sail and the Registration Rights Agreement are incorporated herein by reference only to provide investors with information regarding the terms of the Purchase Agreement with Greater Sail and the Registration Rights Agreement and not to provide investors with any other factual information regarding the Company or its business, and they should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the SEC.
In connection with the Private Placement, the Company issued a press release. A copy of the press release is filed herewith as Exhibit 99.1 to this Current Report on Form 6-K, the contents of which are incorporated herein by reference.
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Description |
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99.3 |
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Registration Rights Agreement with Greater Sail and West Ridge |
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NEWS RELEASE |
Nam Tai Raises $170 million Through Private Placement Transaction
Net Proceeds Will Be Used to Enhance Financial Flexibility
SHENZHEN, China – October 5, 2020 – Nam Tai Property Inc. ("Nam Tai" or the "Company") (NYSE Symbol: NTP) today announced that it has completed a private placement of its common shares (a "private investment in public equity," or "PIPE") with investors Kaisa Group Holdings Ltd. (“Kaisa”) and a large-scale integrated financial group based in Hong Kong. Nam Tai will receive gross proceeds of approximately $170 million, which it expects to use to pay down debt that is at risk for cancellation or early repayment demands and increase its financial flexibility.
Recently, Nam Tai's lending banks have notified Nam Tai that substantial uncertainties may be cast upon the Company’s operations and management control in light of recent actions taken by IsZo Capital Management LP ("IsZo"). In fact, it is difficult for small real estate companies such as Nam Tai to obtain bank financing in China. If Nam Tai’s Board of Directors were to lose its relationship with Kaisa, which would be the case if IsZo's majority slate of nominees were elected to the Board, the Company would run the risk of loans being canceled, consequently leading to significant liquidity issues with its operating and construction works. Furthermore, the requisition notice and further actions related to a potential change in control pursued by IsZo could trigger an early repayment of outstanding loans demanded by the banks under relevant loan covenants.
"After thoughtful deliberation by the Board working with management and the Board’s external financial advisor, we are pleased to announce this investment by two strategic, well capitalized and long-term shareholders who recognize the value creation potential of Nam Tai,” said Dr. Lai Ling Tam, Executive Chairman of the Board of Directors. “As we navigate the current economic environment, the proceeds from this transaction will significantly enhance our financial flexibility and mitigate meaningful risks to our financial stability.”
Dr. Tam added, “Over the past several quarters, the Board and management team have made significant strides on our strategy to build Nam Tai into a leading operator of industrial ecosystems in China. IsZo’s campaign has disrupted our progress, and its statements against the Company and meeting requisition have triggered this significant new risk to our financial stability. Once the Company resolves its on-going matters with IsZo, it anticipates utilizing a portion of the proceeds from this transaction to advance its property development strategy, including the expansion of its portfolio of assets and strategic development opportunities in the Guangdong-Hong Kong-Macao Greater Bay Area, and deliver value to all shareholders.”
Kaisa is a large, diversified investment group in China that is listed on the main board of the Hong Kong Stock Exchange (the “HKEX”) with a market cap exceeding $3.1 billion and a long track record of success. Kaisa has competitive advantages in real estate development and urban renewal, among others. In the field of urban renewal, Kaisa is constantly regarded as one of the national leaders, with 167 urban renewal projects as of June 30, 2020 covering a site area of nearly 42 million square meters, the majority of which are in Guangzhou and Shenzhen. Notably, Kaisa is one of the top developers in Shenzhen, the key market for Nam Tai, and in 2019, contracted sales attributable to Kaisa reached approximately $12.9 billion.
As large and long-term oriented shareholders, Kaisa's and the other investor’s interests are aligned with all Nam Tai shareholders.
As part of the private placement, Kaisa and the other investor received 16,051,219 and 2,603,366 of Nam Tai common shares, respectively, for $9.15 per share.
Houlihan Lokey served as financial advisor, and Latham & Watkins LLP and Walkers served as legal advisors to the Company.
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Forward-looking Statement and Factors that Could Cause our Share Price to Decline
Certain statements included in this press release, other than statements of historical fact, are forward-looking statements. Forward-looking statements generally can be identified by the use of forward-looking terminology such as "may", "might", "can", "could", "will", "would", "anticipate", "believe", "continue", "estimate", "expect", "forecast", "intend", "plan", "seek", or "timetable". These forward-looking statements, which are subject to risks, uncertainties, and assumptions, may include projections of our future financial performance based on our growth strategies and anticipated trends in our business and the industry in which we operate. These statements are only predictions based on our current expectations about future events. There are several factors, many beyond our control, which could cause results to differ materially from our expectation. These risk factors are described in our Annual Report on Form 20-F and in our Current Reports filed on Form 6-K from time to time and are incorporated herein by reference. Any of these factors could, by itself, or together with one or more other factors, adversely affect our business, results of operations or financial condition. There may also be other factors currently unknown to us, or have not been described by us, that could cause our results to differ from our expectations. Although we believe the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance, or achievements. You should not rely upon forward-looking statements as predictions of future events. These forward-looking statements apply only as of the date of this announcement; as such, they should not be unduly relied upon as circumstances change. Except as required by law, we are not obligated, and we undertake no obligation, to release publicly any revisions to these forward-looking statements that might reflect events or circumstance occurring after the date of this press release or those that might reflect the occurrence of unanticipated events.
ABOUT NAM TAI PROPERTY INC.
We are a real estate developer and operator, mainly conducting business in Mainland China. Our main land resources are located in the Guangdong-Hong Kong-Macao Greater Bay Area ("Greater Bay Area") and Wuxi, China, of which the three plots in Shenzhen will be developed into Nam Tai Inno Park, Nam Tai Technology Center and Nam Tai Inno Valley. We plan to build these technology parks into landmark parks in the region and provide high-quality industrial offices, industrial service spaces and supporting dormitories to the tenants. Based on the experience of developing and operating technology parks and an industrial relationship network accumulated over the past 40 years, we have also exported the operation model of technology parks to other industrial properties. Through an asset-light model, we have leased industrial properties for repositioning and business invitation. We will also expand the commercial and residential property business in China as an auxiliary development strategy of the Company. As the growth prospects of China maintain, we shall seize development opportunities in the Greater Bay Area and other first- and second-tier cities in China, and continue to strengthen and expand the business of industrial real estate, and commercial and residential properties. Nam Tai Property Inc. is a corporation registered in the British Virgin Islands and listed on the New York Stock Exchange (Symbol: "NTP"). Please refer to our corporate website (www.namtai.com) or the SEC website (www.sec.gov) for our press releases and financial statements.
SOURCE Nam Tai Property Inc.
Contacts
Ed Trissel / Amy Feng / Mahmoud Siddig
Joele Frank, Wilkinson Brimmer Katcher
212-355-4449
Namtai-jf@joelefrank.com
Investor Relations Department
Nam Tai Property Inc.
E-mail: ir@namtai.com.cn
Execution Version
SECURITIES PURCHASE AGREEMENT
by and between
Greater Sail Limited
and
Nam Tai Property Inc.
Dated as of October 5, 2020
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EXHIBIT ANotices
EXHIBIT BForm of Joinder
ii
This SECURITIES PURCHASE AGREEMENT, dated as of October 5, 2020 (this “Agreement”), is made by and between Greater Sail Limited (the “Investor”) and Nam Tai Property Inc. (the “Company”). The Company and the Investor are referred to herein as a “Party” and, collectively, as the “Parties”. All capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 1.1 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.
RECITALS
WHEREAS, the Company desires to issue and sell to the Investor, and the Investor desires to purchase from the Company, 16,051,219 of the Company’s shares, US$0.01 par value per share (the “Common Shares”), on the terms and conditions contained herein;
WHEREAS, as consideration for the issuance and sale of the Shares (as defined below) by the Company, the Investor shall pay to the Company an aggregate amount of US$146,868,653.85;
WHEREAS, in connection with such sale and purchase, the Company is willing to make certain representations and warranties and to agree to observe certain covenants set forth herein for the benefit of the Investor, and the Investor will rely on such representations, warranties and covenants as a material inducement to their purchase of the Shares;
WHEREAS, in connection with such sale and purchase, the Investor is willing to make certain representations and warranties and to agree to observe certain covenants set forth herein for the benefit of the Company, and the Company will rely on such representations, warranties and covenants as a material inducement to its sale of the Shares;
WHEREAS, in connection with the transactions contemplated by this Agreement, the Company and the Investor wish to set forth certain understandings between such parties, including with respect to certain governance matters; and
WHEREAS, the Board of Directors of the Company (the “Board”) has, upon the terms and subject to the conditions set forth herein, (i) determined that the terms of this Agreement and the other Transaction Documents and the Transactions, including the issuance of the Shares in accordance with this Agreement, are fair to, and in the best interests of, the Company and its shareholders and (ii) approved this Agreement and the other Transaction Documents and the consummation of the Transactions, including the issuance of the Shares in accordance with this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and the covenants, premises, representations and warranties and agreements contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Parties to this Agreement agree as follows:
As used herein, the following terms have the following meanings:
“Affiliate” means, as to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first-mentioned Person.
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“Anticorruption Laws” means Laws relating to anti-bribery or anticorruption (governmental or commercial) that apply to the business and dealings of any Group Company, including the PRC Law on Anti-Unfair Competition adopted on September 2, 1993, the Interim Rules on Prevention of Commercial Bribery issued by the PRC State Administration of Industry and Commerce on November 15, 1996 and the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time.
“Beneficially Own” (and related terms such as “beneficially owned” or “beneficial owner”) has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act; provided, however, that, notwithstanding anything in Rule 13d-3(d)(1)(i) to the contrary, the determination of “Beneficial Ownership” of a Person shall be made after giving effect to the conversion of all options, warrants, rights and convertible or other similar securities outstanding as of any date in question that are held by such Person, irrespective of any conversion or vesting requirement of any such security.
“Business Day” means a day other than Saturday, Sunday or any day on which banks located in New York, New York, Hong Kong and the PRC are authorized or obligated by applicable Law to remain closed or close prior to 5:00 p.m. of the applicable local time.
“Change of Control” means any transaction or series of related transactions involving: (a) any merger, consolidation, share exchange, business combination, recapitalization, reorganization, or other transaction that would result in the shareholders of the Company immediately preceding such transaction Beneficially Owning less than fifty percent (50%) of the total outstanding Equity Securities in the surviving or resulting entity of such transaction (measured by voting power or economic interest), (b) any transaction, including any direct or indirect acquisition or any tender offer, exchange offer or other secondary acquisition, that would result in any Person or Group Beneficially Owning more than fifty percent (50%) of the total outstanding Equity Securities of the Company (measured by voting power or economic interest), (c) any sale, lease, license or other disposition, directly or indirectly, of all or substantially all of the consolidated assets of the Company or (d) the majority of the Directors ceasing to be Continuing Directors.
“Company Material Adverse Effect” means any change, event, occurrence or development (an “Effect”) that, individually or in the aggregate (together with any other Effects), has or would reasonably be expected to (1) have a material adverse effect on the business, asset, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however, that adverse Effects arising out of, resulting from or attributable to the following shall not constitute or be deemed to contribute to a Company Material Adverse Effect, and shall not otherwise be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur, except that Effects with respect to clauses (b) and (c) of the below shall be so considered to the extent such Effect disproportionately impacts the Company relative to other companies operating in the same industry: (a) changes or proposed changes in applicable Law, GAAP or the interpretation or enforcement thereof, (b) changes in general economic, business, labor or regulatory conditions, or changes in securities, credit or other financial markets, including interest rates or exchange rates, in the United States or globally, or changes generally affecting the industries (including seasonal fluctuations) in which the Company or its Subsidiaries operate in the United States or globally, (c) changes in global or national political conditions (including the outbreak or escalation of war (whether or not declared), military action, sabotage or acts of terrorism), changes due to natural disasters or changes in the weather or changes due to the outbreak or worsening of an epidemic, pandemic or other health crisis, (d) actions or omissions taken or not taken at the request of, or with the consent of, the Investor or any of its Affiliates, (e) the negotiation, announcement, pendency or consummation of this Agreement and the Transactions, including the identity of, the Investor or any of its Affiliates or any communication by the Investor or any of its Affiliates regarding plans, proposals or projections with respect to the Company, its Subsidiaries or their employees (including any impact on the relationship of the Company or any its Subsidiaries, contractual or otherwise, with its customers, suppliers, distributors, vendors, lenders, employees or partners), (f) a decrease in the trading price or trading volume of, or suspension of trading in, the Shares, provided that, in the case of this clause (f), the underlying cause of such decrease (unless such underlying cause would otherwise be excluded from this definition) shall be taken into account in determining whether a Company Material Adverse Effect has occurred, or (g) any failure by the Company or any of its Subsidiaries to meet any revenue, earnings or other financial projections or forecasts, provided that, in the case of this clause (g), the underlying cause of such failure (unless such underlying cause would otherwise be excluded from this definition) shall be taken into account in determining whether a Company Material Adverse Effect has occurred or (2) materially impede, delay or impair the Company’s ability to complete the transactions contemplated under this Agreement.
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“Company Option” means each option to purchase Common Shares granted under the Stock Option Plans on or prior to the Closing Date whether or not such option has become vested on or prior to the Closing Date in accordance with the terms thereof.
“Company Registrar” means Computershare Limited.
“Constitutional Documents” means with respect to an entity, its memorandum and articles of association (as amended), by-laws or equivalent constitutional documents.
“Continuing Director” means (a) any Person who is listed on Schedule 1.1, (b) any Director who was nominated for election or elected to the Board with the approval of the majority of the Continuing Directors who were members of the Board at the time of such nomination or election or (c) any Director who was nominated or elected to the Board by individuals referred to in clauses (a) and (b) above constituting at the time of such nomination or election at least a majority of the Board (excluding, in the case of both clause (b) and clause (c), any individual whose initial nomination for, or assumption of office as, a member of the Board occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more Directors by any Person or group of Persons other than a solicitation for the election of one or more Directors by or on behalf of the Board).
“Contract” means any of the agreements, arrangements, contracts, leases (whether for real or personal property), powers of attorney, notes, bonds, mortgages, indentures, deeds of trust, loans, evidences of Indebtedness, letters of credit, settlement agreements, franchise agreements, undertakings, covenants not to compete, employment agreements, licenses, purchase and sale orders and other legally binding commitments, whether written or oral, to which in each case a Person is a party or to which any of the properties or assets of such Person is subject.
“control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of capital stock or other Equity Securities, as trustee or executor, by Contract or credit arrangement or otherwise.
“Director” means any director of the Company.
“Equity Securities” means any and all (a) shares, interests, participations or other equivalents (however designated) of capital stock or other voting securities of a corporation, any and all equivalent or analogous ownership (or profit) or voting interests in a Person (other than a corporation), (b) securities convertible into or exchangeable for shares, interests, participations or other equivalents (however designated) of capital stock or voting securities of (or other ownership or profit or voting interests in) such Person and (c) any and all warrants, rights or options to purchase any of the foregoing, whether voting or nonvoting, and, in each case, whether or not such shares, interests, participations, equivalents, securities, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Expenses” includes all expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants to a Party and its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of the Transaction Documents and the Transactions.
“GAAP” means generally accepted accounting principles, as applied in the United States.
“Governmental Entity” means (a) any national, federal, state, county, municipal, local or foreign government, or other political subdivision thereof, (b) any entity exercising executive, legislative, judicial, regulatory, taxing, administrative or prosecutorial functions of or pertaining to government, (c) any arbitrator, arbitral body or mediator and (d) any self-regulatory organization (including the NYSE, The Stock Exchange of Hong Kong Limited, or any other securities market).
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“Government List” means any list maintained by any agency or department of any Governmental Entity in the United States of Persons, organizations or entities subject to international trade, export, import or transactions restrictions, controls or prohibitions, including (i) the Denied Persons List and Entities List maintained by the U.S. Department of Commerce, (ii) the List of Specially Designated Nationals and Blocked Persons and the List of Sectoral Sanctions Identification maintained by the U.S. Department of Treasury, (iii) the Foreign Terrorist Organizations List and the Debarred Parties List maintained by the U.S. Department of State and (iv) those Persons, organizations and entities listed in the Annex to, or are otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing (effective September 21, 2004).
“Group” has the meaning assigned to it in Section 13(d)(3) of the Exchange Act and Rule 13d-5 thereunder.
“Group Company” means any of the Company and its Subsidiaries.
“Indebtedness” means, of any Person and as of any time, the aggregate amount of the following, without duplication: (a) the outstanding principal amount of any indebtedness for borrowed money; (b) all other obligations evidenced by bonds, debentures, notes or similar instruments of indebtedness; (c) all capitalized lease obligations that are classified as a balance sheet liability in accordance with GAAP; (d) all letters of credit, performance bonds, surety bonds, banker’s acceptances or similar obligations issued for the account of such Person; (e) all guarantees and keepwell arrangements issued by such Person; (f) to the extent not otherwise included, all indebtedness of another Person secured by a Lien on any asset owned by such first Person, whether or not such indebtedness is assumed by such first Person; (g) all obligations due and payable under any interest rate swap agreements or interest rate hedge agreements and similar agreements to which any such Person is a party; (h) all obligations issued or assumed as the deferred purchase price of property or services with respect to which any Person is liable, contingent or otherwise (including conditional sale obligations and “earn-out” obligations but excluding trade payables arising in the ordinary course of business); and (i) any interest owed with respect to the indebtedness referred to above and prepayment penalties, premiums, breakage or fees and expenses due and payable with respect thereto.
“Investor Entities” means the Investor and any of its Affiliates.
“Investor Parties” means (a) the Investor and (b) any Investor Permitted Transferee that becomes a party to this Agreement by executing a joinder agreement substantially in the form attached as Exhibit B to this Agreement.
“Law” means any applicable federal, national, provincial, state, municipal and local laws, statutes, ordinances, decrees, rules, regulations or Orders of any Governmental Entity, in each case, having the force of law.
“Liability” means any liability, debt, obligation, deficiency, interest, Tax, penalty, fine, claim, demand, judgment, cause of action or other loss (including, without limitation, loss of benefit or relief), cost or expense of any kind or nature whatsoever, whether asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, and whether due or to become due and regardless of when asserted.
“Lien” means, with respect to any property, equity interest or asset, any mortgage, deed of trust, hypothecation, lien, encumbrance, pledge, charge, security interest, right of first refusal, right of first offer, adverse claim, restriction on transfer, covenant or option in respect of such property, equity interest or asset.
“NYSE” means the New York Stock Exchange.
“Order” means any judgment, order, decision, ruling, determination, writ, injunction, decree or arbitration award.
“Percentage Interest” means, with respect to any shareholder(s) of the Company, the Total Share Ownership of such shareholder(s) divided by the total issued and outstanding Common Shares, including shares issuable upon conversion or exercise of convertible securities, options, warrants or other similar securities, in each case, deemed to be Beneficially Owned by such shareholder that are not yet issued and outstanding, expressed as a percentage.
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“Permitted Liens” means (a) Liens for Taxes (i) not yet due or delinquent or subject to penalties or (ii) that are being contested in good faith by appropriate Proceedings and (in the case of this clause (ii)) for which appropriate reserves have been made in accordance with GAAP, (b) Liens in favor of landlords, lessors, vendors, carriers, warehousemen, repairmen, mechanics, workmen, materialmen, construction or similar liens or encumbrances arising by operation of Law in the ordinary course of business for amounts not yet delinquent, (c) non-exclusive licenses of intellectual property, and (d) (i) applicable building, zoning and land use regulations, and (ii) other imperfections or irregularities in title, restrictions, easements, rights of way and other non-monetary Liens which, in each of cases (i), and (ii) are not violated in any material respect by, and do not materially impair the use (as of the date hereof), operation or occupancy of the real property occupied by the Group Company to which they relate.
“Person” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in Section 13(d) of the Exchange Act).
“PRC” means the People’s Republic of China, excluding for purposes of this Agreement only, Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan.
“Proceeding” means any action, suit, claim, mediation, arbitration or proceeding, in each case, by or before any Governmental Entity.
“Representatives” means, with respect to a Person, such Person’s directors, officers, employees, accountants, consultants, legal counsel, investment bankers, advisors, agents and other representatives acting on such Person’s behalf in connection with the Transactions.
“Restricted Period” means the period commencing on the Closing and ending on the earlier of (i) twelve (12) month anniversary of the Closing and (ii) the Sunset Date.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Stock Option Plans” means the 2016 Stock Option Plan and the 2017 Stock Option Plan.
“Subsidiary” of an Investor, the Company or any other Person means any corporation, limited liability company, partnership, joint venture or other legal entity of which such Investor, the Company or such other Person, as the case may be (either alone or through or together with any other Subsidiary), (i) owns, directly or indirectly, a majority of the capital stock or other Equity Securities the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, limited liability company, partnership, joint venture or other legal entity, or (ii) (a) otherwise owns, directly or indirectly, such capital stock or other Equity Securities or (b) has any right that would, in each case, confer control of any such corporation, limited liability company, partnership, joint venture or other legal entity, or any Person that would otherwise be deemed a “subsidiary” under Rule 12b-2 promulgated under the Exchange Act; provided, that, the Company shall not be deemed a “Subsidiary” of any Investor Party for purposes of this Agreement.
“Sunset Date” means the earliest date on which (a) the aggregate Percentage Interest of the Investor Entities is less than twenty-five percent (25%) or (b) a Change of Control shall have been consummated or have occurred.
“Tax” or “Taxes” means any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity or taxing authority, including, taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, occupation, property, real estate, deed, land use, sales, use, capital stock, payroll, severance, employment (including withholding obligations imposed on employer/payer), social security, workers’ compensation, unemployment compensation or net worth; taxes or other charges in the nature of excise, withholding (as payor or payee), ad valorem, stamp, transfer, value-added or gains taxes; license, registration and documentation fees; and customers’ duties, tariffs and similar charges.
“Third Party” means any Person except any of the Parties or any of their respective Affiliates.
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“Total Share Ownership” means, as of any applicable date hereunder, and with respect to any Person, the total number of Common Shares (including shares issuable upon conversion or exercise of convertible securities, options, warrants or other similar securities) Beneficially Owned by such Person.
“Transaction Documents” means this Agreement and the Registration Rights Agreement.
“Transactions” means the issuance, sale and purchase of the Shares in accordance with this Agreement, and the other transactions contemplated by this Agreement and the other Transaction Documents.
“Transfer” (including its correlative meaning, “Transferred”) shall mean, with respect to any Equity Security, directly or indirectly, by operation of Law, contract or otherwise, (a) to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, offer, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic, voting or other rights in or to such Equity Security (other than any pledge, encumbrance or granting of security interest to a commercial bank in connection with a bona fide financing transaction) or (b) to engage in any hedging, swap, forward contract or other similar transaction that results in a sale or disposition of Beneficial Ownership of, or pecuniary interest in, such Equity Security, including any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to such Equity Security. When used as a noun, “Transfer” shall have such correlative meaning as the context may require.
“Voting Securities” means Common Shares and any other securities of the Company entitled to vote generally in the election of Directors.
“Voting Sunset Date” means the earliest date on which (a) the aggregate Percentage Interest of the Investor Entities is less than thirty percent (30%) or (b) a Change of Control shall have been consummated or have occurred.
“2016 Stock Option Plan” means the Company’s 2016 Stock Option Plan, as amended.
“2017 Stock Option Plan” means the Company’s 2017 Stock Option Plan, as amended.
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The following terms are defined elsewhere in this Agreement, as indicated below:
Agreement |
Preamble |
Bankruptcy and Equity Exception |
Section 3.3 |
Board |
Recitals |
Closing |
Section 2.2(a) |
Closing Date |
Section 2.2(a) |
Common Shares |
Recitals |
Company |
Preamble |
Company Disclosure Schedule |
Article 3 |
Company SEC Documents |
Section 3.7(a) |
Dispute |
Section 6.10(b) |
HKIAC |
Section 6.10(b) |
Investor |
Preamble |
Party, Parties |
Preamble |
Purchase Price |
Section 2.1 |
Registration Rights Agreement |
Section 2.2(b)(i) |
Shares |
Section 2.1 |
1.3Other Definitional and Interpretative Provisions
The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”, “laws” or to any applicable Law shall be deemed to refer to such law or applicable Law as amended from time to time, except as otherwise specified herein, and to any rules or regulations promulgated thereunder. All references to “days” shall mean calendar days unless otherwise indicated. All references to “dollars” or “$” shall mean United States dollars. The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
Article 2
Purchase and Sale of Stock; closing
2.1Issuance, Sale and Purchase of the Shares
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Subject to the terms and conditions of this Agreement, the Company hereby issues and sells to the Investor, and the Investor hereby purchases and acquires from the Company, 16,051,219 Common Shares (the “Shares”). The aggregate purchase price for the Shares shall be US$146,868,653.85 (the “Purchase Price”).
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(b) |
At the Closing, the Investor shall deliver or cause to be delivered to the Company the following: |
|
(i) |
the Registration Rights Agreement by and between the Company and the Investor (the “Registration Rights Agreement”) duly executed by the Investor; and |
|
(ii) |
the Purchase Price, by wire transfer of immediately available funds in accordance with written instructions set forth on Schedule 2.2(b)(iii) hereto. |
|
(c) |
At the Closing, the Company shall deliver or cause to be delivered to the Investor the following: |
|
(i) |
an email to the Company Registrar (copying the Investor) with instructions to the Company Registrar to update the register of members of the Company to reflect the Investor’s ownership of the Shares; |
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(ii) |
evidence from the Company Registrar of the issuance of the Shares in the name of the Investor on the register of members of the Company (which may be delivered by way of electronic mail), which shall be subject to the legends contemplated in Section 5.2(c); and |
|
(iii) |
the Registration Rights Agreement duly executed by the Company. |
Within ten (10) Business Days after Closing, the Company shall deliver or cause to be delivered to the Investor the following:
|
(a) |
a redacted original copy of a certificate issued by the Company Registrar confirming that the copy of the register of members of the Company attached to such certificate is definitive evidence that the Investor is the owner of the Shares; and |
|
(b) |
a legal opinion issued by a reputable British Virgin Islands legal counsel with offices in Hong Kong to the Company, with respect to the due incorporation, valid existence and corporate authority of the Company to enter into Transaction Documents and perform the transactions contemplated under the Transaction Documents and the valid issuance of the Shares free and clear of any encumbrance (except for any encumbrances created under this Agreement or any applicable securities laws). |
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Article 3
Representations and Warranties of the Company
Except (a) as set forth in the disclosure schedule delivered by the Company to the Investor (the “Company Disclosure Schedule”) prior to the execution of this Agreement (with specific reference to the representations and warranties in this Article 3 to which the information in such schedule relates; provided, that, disclosure in the Company Disclosure Schedule as to a specific representation or warranty shall qualify any other sections of this Agreement to the extent (notwithstanding the absence of a specific cross reference) it is reasonably apparent that such disclosure relates to such other sections), and (b) as otherwise disclosed or identified in the Company SEC Documents filed between January 1, 2015 and the date hereof (other than any forward-looking disclosures contained in the “Forward Looking Statements” and “Risk Factors” sections of the Company SEC Documents), the Company hereby represents and warrants to the Investor that the statements contained in this Article 3 are true and correct as of the Closing Date.
The Company is a corporation duly organized, validly existing and in good standing under the Laws of the British Virgin Islands. Each of the Company’s Subsidiaries is a legal entity duly organized or formed, validly existing and in good standing (to the extent the relevant jurisdiction recognizes such concept of good standing) under the Laws of the jurisdiction of its organization or formation, and each Group Company has the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease, operate and use its properties and assets and to carry on its business as it is now being conducted, except where the failure of any of the Company’s Subsidiaries to be so organized, existing or in good standing or of any Group Company to have such power, authority or approvals has not had, and would not be reasonably expected to be material to the Group Companies taken as a whole. Each Group Company is duly qualified or licensed to do business, and is in good standing (to the extent the relevant jurisdiction recognizes such concept of good standing), in each jurisdiction where the character of the properties and assets owned, leased, operated or used by it or the nature of its business makes such qualification or licensing necessary, except where any such failure to be so qualified or licensed or in good standing would not be material to the Group Companies taken as a whole.
The Company is authorized to issue a maximum of 200,000,000 shares, par value of US$0.01 per share. As of the close of business on the Business Day immediately prior to the date hereof (i) 39,197,991 Common Shares were issued and outstanding, all of which have been duly authorized and are validly issued, fully paid and non-assessable and (ii) 1,192,700 Common Shares are issuable pursuant to outstanding Company Options granted pursuant to the Stock Option Plans (and for the avoidance of doubt are not included in the number of issued and outstanding Common Shares set forth in clause (i)). Except as set forth in this Section 3.2, as of the date hereof there are no outstanding subscriptions, options, warrants, conversion rights, call rights or other agreements, arrangements or commitments issued by any Group Company relating to the issued or unissued share capital of the Company or any of its Subsidiaries or obligating any Group Company to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or other securities of any other Group Company or any securities or obligations convertible or exchangeable into or exercisable for, or giving any person a right to subscribe for or acquire, any securities of any Group Company and no securities or obligations evidencing such rights are authorized, issued or outstanding. Except for the Common Shares, no other class or series of securities of the Company have been issued or are outstanding.
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3.3Authority; Execution and Delivery; Enforceability
The Company has the requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents and the consummation by the Company of the Transactions have been duly authorized by the Board and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement, the other Transaction Documents or the consummation by the Company of the Transactions. This Agreement and the other Transaction Documents have been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by the Investor of this Agreement and the other Transaction Documents, this Agreement and the other Transaction Documents constitute the Company’s legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject only to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general principles of equity (the “Bankruptcy and Equity Exception”).
3.5Registration; General Solicitation; No Integration
Subject to, and in reliance on, the representations, warranties and covenants made herein by the Investor, the offer and sale of the Shares pursuant to this Agreement is, or will be, as the case may be, exempt from the registration and prospectus delivery requirements of the Securities Act and the rules and regulations promulgated thereunder. Other than with respect to the Investor and its Affiliates, neither the Company nor any other Person or entity authorized by the Company to act on its behalf has (a) engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Shares or (b) directly or indirectly, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) of the Company or its Affiliates under circumstances that would require registration of the Shares under the Securities Act or cause the offering under this Agreement to be integrated with any prior offering of securities of the Company for purposes of the Securities Act.
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Upon issuance, the Shares will be duly authorized for issuance and sale to the Investor pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the Purchase Price, will be validly issued, fully paid, non-assessable and will be delivered to the Investor free and clear of all Liens (other than transfer restrictions under applicable securities Laws and the Transaction Documents). The issuance of the Shares pursuant to this Agreement is not subject to preemptive or other similar rights.
3.7SEC Documents; Financial Statements; Undisclosed Liabilities
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(b) |
Each of the consolidated financial statements (including, in each case, any notes thereto) contained in or incorporated by reference into the Company SEC Documents was prepared in accordance with GAAP (except, in the case of the unaudited statements, as permitted by the SEC) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and each accurately and fairly presents, in all material respects, the consolidated financial position of the Group Companies as at the respective dates thereof and the consolidated results of their operations and cash flows for the respective periods indicated therein (subject, in the case of unaudited statements, to normal year-end adjustments and to any other adjustments described therein, the effect of which, individually or in the aggregate, is not material, and to the exclusion of certain notes in accordance with the rules of the SEC relating to unaudited financial statements), in each case in accordance with GAAP except to the extent that such information has been amended or superseded by later Company SEC Documents filed prior to the date hereof. |
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(c) |
Except as and to the extent set forth in the audited annual financial results of the Group Companies as of December 31, 2019, including the notes thereto, no Group Company has outstanding (i) any Indebtedness or any commitments therefor or (ii) any other liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) that are required in accordance with GAAP to be disclosed or reflected or reserved against in the consolidated financial statements of the Group Companies, except for Indebtedness or any commitments therefor or other liabilities or obligations (A) reflected or reserved against on the consolidated balance sheet of the Company as of December 31, 2019, (B) incurred in the ordinary course of business consistent with past practice since December 31, 2019, or (C) incurred pursuant to this Agreement or in connection with the Transactions, or (D) that do not have a Company Material Adverse Effect. Since December 31, 2019, there has not been a Company Material Adverse Effect. |
11
|
(f) |
The Company is in compliance, in all material respects, with the applicable listing and corporate governance rules and regulations of the NYSE, subject to any “home country” exemption from such rules and regulations available to a “foreign private issuer” (as defined under the Exchange Act and under the relevant rules and regulations of the NYSE). |
3.8Listing and Maintenance Requirements
The Common Shares are registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to have the effect of, terminating the registration of the Common Shares under the Exchange Act nor has the Company received as of the date hereof any notification that the SEC is contemplating terminating such registration. The Common Shares are listed on the NYSE and the Company has not received any written notice from the NYSE to the effect that the Company is not in compliance with the maintenance requirements of such exchange.
The Company is not and, after giving effect to the issue and sale of the Shares, the consummation of the transactions contemplated under the Transaction Documents and the application of the proceeds from the issue and sale of the Shares, will not be an “investment company,” as such term is defined in the U.S. Investment Company Act of 1940, as amended.
3.10No Registration Rights Granted
Except for any registration rights with respect to the Shares granted by the Company to the Investor in the Transaction Documents and that certain Expenses Reimbursement Agreement dated as of November 16, 2018 by and between the Company and Kaisa Group Holdings Limited (as such agreement may be amended from time to time), the Company has not granted any registration rights with respect to any securities of the Company to any Person.
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There is no Proceeding pending, or, to the knowledge of the Company, threatened that individually or in the aggregate, has enjoined, restrained, prevented or materially delayed, or would reasonably be expected to enjoin, restrain, prevent or materially delay the consummation of the Transactions.
Except for as disclosed to the Investor prior to the Closing, neither the Company nor any of its Affiliates nor any of its officers or directors on behalf of the Company or such Affiliate has employed any financial advisor, broker or finder or incurred any liability for any financial advisory, broker’s fees, commissions or finder’s fees in connection with any of the Transactions.
3.13No Other Representations or Warranties
Except for the representations and warranties expressly set forth in this Article 3, none of the Company, any of its Affiliates or any other Person on behalf of the Company makes any express or implied representation or warranty with respect to the Shares or the Company, its Subsidiaries or their respective businesses or with respect to any other information provided, or made available, to the Investor or its Affiliates or Representatives in connection with the transactions contemplated hereby (including any financial projections or forward-looking financial documents), including the accuracy or completeness thereof.
Article 4
Representations and Warranties of THE investor
The Investor hereby represents and warrants to the Company that the statements contained in this Article 4 are true and correct as of the Closing Date:
The Investor is a legal entity duly organized or formed, validly existing and (to the extent the relevant jurisdiction recognizes such concept of good standing) under the Laws of its jurisdiction of its organization or formation, as applicable. The Investor has the requisite corporate or similar power and authority and all necessary governmental approvals to own, lease, operate and use its properties and assets and to carry on its business as it is now being conducted. The Investor is duly qualified or licensed to do business, and is in good standing (to the extent the relevant jurisdiction recognizes such concept of good standing), in each jurisdiction where the character of the properties and assets owned, leased, operated or used by it or the nature of its business makes such qualification or licensing necessary, except where any such failure to be so qualified or licensed or in good standing would not prevent or materially delay the Transactions.
4.2Authority, Execution and Delivery; Enforceability
The Investor has the requisite corporate or similar power and authority to execute and deliver this Agreement and the other Transaction Documents, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance by the Investor of this Agreement and the other Transaction Documents and the consummation by the Investor of the Transactions have been duly authorized by all necessary corporate or similar action on the part of the Investor and no other corporate action on the part of the Investor or shareholder votes are necessary to authorize the execution and delivery by the Investor of this Agreement, the other Transaction Documents or the consummation by such Investor of the Transactions. This Agreement and the other Transaction Documents have been duly and validly executed and delivery by the Investor and, assuming the due authorization, execution and delivery by the Company of this Agreement and the other Transaction Documents, this Agreement and the other Transaction Documents constitute the Investor’s legal, valid and binding obligation, enforceable against the Investor in accordance with its terms, subject only to the Bankruptcy and Equity Exception.
13
There is no Proceeding pending, or, to the knowledge of the Investor, threatened that, individually or in the aggregate, has enjoined, restrained, prevented or materially delayed, or would reasonably be expected to enjoin, restrain, prevent or materially delay the consummation of the Transactions.
4.5Securities Act Representations
The Investor is an accredited investor (as defined in Rule 501 of the Securities Act) and is aware that the issuance and sale of the Shares is being made in reliance on a private placement exemption from registration under the Securities Act. The Investor is acquiring the Shares for its own account, and not with a view toward, or for sale in connection with, any distribution thereof in violation of any federal or state securities or “blue sky” Law, or with any present intention of distributing or selling the Shares in violation of the Securities Act. The Investor has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Shares and is capable of bearing the economic risks of such investment.
4.6Anti-Money Laundering, Anti-Terrorism and Similar Laws
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(a) |
Neither the Investor nor any of its Affiliates is included on a Government List or is owned in any amount or controlled by any Person on a Government List, as amended from time to time. |
|
(b) |
Neither the Investor nor any of its Affiliates is acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those Persons or entities that appear on any Government List, as amended from time to time. |
|
(c) |
None of the funds to be used to purchase the Shares or in connection with the Transactions shall be knowingly derived from any activities that contravene any Anticorruption Laws or applicable Laws concerning money laundering, terrorism, narcotics trafficking, or from any Person, entity, country, or territory on a Government List. |
14
Except for as disclosed to the Company prior to the closing, neither the Investor nor any of its Affiliates nor any of its officers or directors on behalf of the Investor or such Affiliate has employed any financial advisor, broker or finder or incurred any liability for any financial advisory, broker’s fees, commissions or finder’s fees in connection with any of the Transactions.
4.8No Other Representations and Warranties; Non-Reliance
The Investor has conducted its own independent review and analysis of the business, operations, assets, intellectual property, technology, liabilities, results of operations, financial condition and prospects of the Company and the Investor acknowledges that it and its Representatives have received access to such books and records, facilities, equipment, contracts and other assets of the Company that it and its Representatives have requested to review, and that it and its Representatives have had full opportunity to meet with the management of the Company and to discuss the business and assets of the Company. The Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any express or implied representation or warranty with respect to the Shares or the Company or any of its Subsidiaries or with respect to any other information provided to the Investor in connection with the Transactions including the accuracy or completeness thereof other than the representations and warranties contained in Article 3.
Article 5
Covenants; aDDITIONAL aGREEMENTS
Neither the Investor nor the Company shall issue any press release or make any public statement with respect to the Transactions or this Agreement without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed), except (a) as may be required by, or in the good faith opinion of the relevant Party, desirable under applicable Law or the rules or regulations of any applicable Governmental Entity to which the relevant Party is subject, in which case the Party required or intending to make the release or announcement shall use its commercially reasonable efforts to allow each other Party reasonable time to comment on such release or announcement in advance of such issuance or (b) any public statement in response to questions from the press, analysts, investors or those attending industry conferences, internal announcements to employees and or disclosures in Company SEC Documents, so long as such statements are consistent with previous press releases, public disclosures or public statements made jointly by the Parties (or individually, if approved by the other Party). The Company shall file a current report on Form 6-K with the SEC attaching the joint press release announcing this Agreement and copy of this Agreement and the other Transaction Documents as exhibits, and the Company shall provide the Investor with a reasonable opportunity to comment on such joint press release.
The Investor acknowledges and agrees that:
|
(a) |
as of the Closing Date, the Shares have not been registered under the Securities Act or the securities laws of any state and that they may be sold or otherwise disposed of only in one or more transactions registered under the Securities Act and, where applicable, such laws, or as to which an exemption from the registration requirements of the Securities Act and, where applicable, such laws, is available; |
|
(b) |
the Common Shares are listed on the NYSE and the Company is required to file reports containing certain business and financial information with the SEC and may be required to file a copy of this Agreement and the other Transaction Documents with the SEC, pursuant to the reporting requirements of the Exchange Act and that it is able to obtain copies of such reports; and |
15
|
(c) |
the certificates or book-entry position representing the Shares will bear or reflect, as applicable, legends substantially similar to the following: |
“THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) PURSUANT TO ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (III) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH THE SECURITIES ACT AND ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM SUCH HOLDER OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THE COMPANY MAY REQUIRE THE DELIVERY OF A WRITTEN OPINION OF COUNSEL, CERTIFICATIONS AND/OR ANY OTHER INFORMATION IT REASONABLY REQUIRES TO CONFIRM THE SECURITIES ACT EXEMPTION FOR SUCH TRANSACTION.”
Additionally, for so long as a holder of Shares is subject to any transfer restrictions set forth in this Agreement or the other Transaction Documents, the certificates or book-entry position representing such holder’s Shares will bear or reflect a legend substantially similar to the following:
“THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A SECURITIES PURCHASE AGREEMENT, DATED OCTOBER 5, 2020 (AS IT MAY BE AMENDED FROM TIME TO TIME), BY AND AMONG THE COMPANY AND CERTAIN OTHER PARTIES THERETO, COPIES OF WHICH ARE PUBLICLY FILED OR ON FILE WITH THE SECRETARY OF THE ISSUER.”
Until the Voting Sunset Date, at any meeting of shareholders of the Company at which the election of any directors affirmatively nominated by the Board is submitted to a vote of the shareholders of the Company (or if action is taken by written consent of shareholders of the Company in lieu of a meeting), the Investor Parties shall, with respect to each director designee nominated by the Board to serve as a Director, vote, or cause to be voted (including, if applicable, by written consent), all Shares Beneficially Owned by the Investor Entities either (at the sole discretion of the Investor Parties) (i) affirmatively in favor of the election of each director designee nominated by the Board to serve as a Director or (ii) in the same proportion that the Common Shares not Beneficially Owned by the Investor Parties are voted for or against, or abstains with respect to each director designee nominated by the Board to serve as a Director. Until the Voting Sunset Date, at each meeting of the Company’s shareholders, the Investor Entities shall cause all of the Voting Securities Beneficially Owned by Investor Entities to be present in person or by proxy for quorum purposes, and shall ensure that its broker-designees, if any, have the authority to vote on at least one “routine” matter at a meeting of the Company’s shareholders sufficient to be counted as present for quorum purposes.
|
(a) |
During the Restricted Period, no Investor Party shall Transfer any Shares, other than pursuant to a Permitted Transfer. |
|
(b) |
“Permitted Transfer” means: |
16
|
(i) |
a Transfer that has been approved in advance by a majority of the independent and disinterested members of the Board; |
|
(ii) |
a Transfer to any Investor Entity (any such Investor Entity, an “Investor Permitted Transferee”), if such Investor Permitted Transferee shall have agreed in writing to be bound to the same extent as Investor by the obligations of this Agreement by executing a joinder agreement substantially in the form attached as Exhibit B to this Agreement; |
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(iii) |
a Transfer in connection with any Change of Control transaction approved by the Board or a duly-authorized committee thereof (including if the Board or such committee recommends that the Company’s shareholders tender in response to a tender or exchange offer that, if consummated, would constitute a Change of Control); or |
|
(iv) |
a Transfer that constitutes a tender into a tender or exchange offer commenced by the Company or any of its Affiliates. |
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(c) |
Any Transfer or attempted Transfer of Equity Securities of the Company in violation of this Section 5.4 shall, to the fullest extent permitted by applicable Law, be null and void ab initio, and the Company shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the books of the Company. |
Upon the request of the applicable Investor Party, (i) in connection with any Transfer of Common Shares in accordance with the terms of this Agreement (other than Section 5.4(b)(ii)), the Company shall promptly cause the second paragraph of the legend (or notation) to be removed upon such Transfer if such restrictions would not be applicable following such Transfer, (ii) following receipt by the Company of an opinion of counsel reasonably satisfactory to the Company to the effect that such legend (or notation) may be lifted in connection with the Transfer of Common Shares, the Company shall promptly cause the first paragraph of the legend (or notation) to be removed from any Common Shares to be Transferred in accordance with the terms of this Agreement and (iii) to the extent the first and second paragraph of the legend (or notation) would be removed pursuant to this paragraph in connection with any Transfer of Common Shares, the Company shall cause such Common Shares to be registered in the name of The Depository Trust Company’s nominee.
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(a) |
Subject to Section 5.5(b), on and after the Closing until the Sunset Date, the Investor and any Investor Parties shall not, shall cause their respective Affiliates not to, and shall cause the Investor Parties and their respective Affiliates acting at their direction not to, in any manner, directly or indirectly, without the prior written consent of, or waiver by, the Company. |
17
|
(iii) |
make, knowingly encourage or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC promulgated pursuant to Section 14 of the Exchange Act) to vote any Voting Securities, or seek to advise or influence any Person with respect to the voting of, any Voting Securities (other than, in each case, in a manner that is consistent with the Board’s recommendation in connection with a matter); |
|
(iv) |
seek election to, or seek to place a representative on, the Board or seek removal of any member of the Board; provided that, notwithstanding the foregoing, the Investor may recommend to the Company (or propose itself) up to two (2) individuals affiliated with the Investor be nominated to the Board at an annual meeting of the Company’s shareholders; |
|
(v) |
call, or seek to call, a meeting of the shareholders of the Company, initiate any shareholder proposal for action by shareholders of the Company or initiate any request for records of the Company; |
|
(vi) |
form, join or in any way participate in a Group with respect to Equity Securities (other than a Group consisting solely of the Investor Parties); |
|
(vii) |
advise or knowingly assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection with any of the foregoing activities; |
|
(viii) |
publicly disclose any intention, plan, proposal or arrangement inconsistent with any of the foregoing activities; |
18
|
(x) |
take any action the Investor or an Investor Party knows, or would reasonably be expected to know, after consultation with outside legal counsel, would require the Company to make a public announcement regarding the possibility of a transaction that would constitute a Change of Control or any of the foregoing activities; |
|
(xi) |
contest the validity of this Section 5.5(a) or initiate or participate in any judicial proceeding to amend, waive, terminate or seek a release of the restrictions contained herein, it being understood and agreed that the Investor shall be responsible for any breach of this Section 5.5 caused by any action taken by any Investor Entity or by a representative of an Investor Entity acting at the direction of any Investor Entity; or |
|
(xii) |
deposit any Equity Securities of the Company into a voting trust or subject any Equity Securities to any agreement or arrangement (including by granting any proxies with respect to the Equity Securities to any third party with respect to the voting of such Equity Securities with any third party) other than (A) to provide for voting solely in accordance with this Agreement or (B) pursuant to any agreement or arrangement of the Investor set forth in the organizational or governance documents of the Investor existing on the date hereof. |
|
(b) |
Notwithstanding anything to the contrary in Section 5.5(a), no Investor Party shall be prohibited or restricted from initiating and engaging in private discussions with, and/or making and submitting to, the Company and/or the Board a non-public, confidential proposal with respect to the matters set forth in Section 5.5(a) so long as such Investor Party does not know, and would not be reasonably expected to know, after consultation with outside legal counsel, that such actions would be reasonably likely to require the Investor, the Company or any other Person to make a public announcement regarding such proposal. For the avoidance of doubt, Section 5.5(a) shall continue to apply except to the extent such provisions would prevent an Investor Party from taking the actions expressly permitted by this Section 5.5(b). |
|
(c) |
Notwithstanding anything to the contrary in Section 5.5(a), until the Sunset Date, in the event that the Company proposes to issue new Voting Securities, the Investor shall have the right to purchase a number of shares of Voting Securities equal to the product of (i) the total number or amount of shares of new Voting Securities which the Company proposes to issue at such time and (ii) a fraction, the numerator of which shall be the total number of Common Shares which the Purchaser owns at such time, and the denominator of which shall be the total number of Common Shares of the Company then outstanding (prior to the issuance of new Voting Securities), in each case, in accordance with Section 5.5(d). The rights given by the Company under this Section 5.5(c) shall terminate if unexercised within ten (10) days after receipt of the Notice of Issuance referred to in paragraph (d) below, provided that any termination of such rights for a particular issuance shall not affect the right of the Investor to exercise such rights for any future issuance. |
19
5.6Waiver of Corporate Opportunity
To the fullest extent permitted by applicable Law, the Company hereby agrees that the Exempted Persons shall not have any obligation to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company or any of its Subsidiaries. To the fullest extent permitted by applicable Law, the Company, on behalf of itself and its Subsidiaries, renounces any expectancy of the Company and its Subsidiaries in any Exempted Persons offering the Company or its Subsidiaries an opportunity to participate in, business opportunities that are from time to time available to the Exempted Persons; provided, however, the foregoing shall not prohibit the Company or its Subsidiaries from participating in any such business opportunities. The Company hereby further agrees that, each Exempted Person shall have no duty to communicate or offer such business opportunity to the Company (and that there shall be no restriction on the Exempted Persons using the general knowledge and understanding of the Company and the industry in which the Company operates that it has gained as an Exempted Person in considering and pursuing such opportunities or in making investment, voting, monitoring, governance or other decisions relating to other entities or securities) and, to the fullest extent permitted by applicable Law, shall not be liable to the Company or any of its Subsidiaries or shareholders for breach of any fiduciary or other duty, as a director or officer or otherwise, solely by reason of the fact that such Exempted Person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Company or its Subsidiaries, or uses such knowledge and understanding in the manner described herein. The parties specifically agree that each Exempted Person is an intended third-party beneficiary of this Section 5.6 and is entitled to rely upon and enforce the rights and obligations granted herein. “Exempted Person” shall mean the Investor Parties, their respective Affiliates and each of their respective partners, principals, directors, officers, members, managers, managing directors, operating partners and/or employees, as applicable. In addition to and notwithstanding the foregoing, a corporate opportunity shall not be deemed to belong to the Company if it is a business opportunity that the Company is not financially able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Company’s business or is of no practical advantage to it or that is one in which the Company has no interest or reasonable expectancy.
During the period commencing on the Closing and ending on the twelve (12) month anniversary of the Closing, no Investor Entity shall enter into a short sale of the Equity Securities of the Company.
20
This Agreement may not be amended except by an instrument in writing signed by the Parties.
The Investor or the Company may (a) waive any breach of the representations and warranties of the other Party contained herein or in any document delivered pursuant hereto or (b) waive compliance by the other Party with any of the agreements or covenants contained herein. Any such waiver shall be valid only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
The representations and warranties in this Agreement shall survive Closing in accordance with their terms for a period of eighteen (18) months. The covenants and agreements which contemplate satisfaction prior to the Closing shall not survive the Closing. This Section 6.3 shall not limit any covenant or agreement of the Parties which by its terms contemplates performance after the Closing, which shall survive to the extent expressly provided for herein.
All Expenses incurred by the Parties shall be borne solely and entirely by the Party which has incurred the same.
Any notices or other communications required or permitted under, or otherwise given in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered or sent if delivered in Person or sent by facsimile transmission (provided confirmation of facsimile transmission is obtained); provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day, (b) on the fifth Business Day after dispatch by registered or certified mail (provided, that such form of notice may only be used if dispatched from the country in which the recipient is located), (c) on the next Business Day if transmitted by national or international overnight courier or (d) on the date delivered if sent by email (provided confirmation of email receipt is obtained), in each case, to the addresses set forth on Exhibit A attached hereto (or to such other Persons or addressees as may be designated in writing by the Party to receive such notice).
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
21
This Agreement (together with the Exhibits and the Company Disclosure Schedule, the other Transaction Documents and the other documents delivered pursuant hereto) constitutes the entire agreement of the Parties and supersede all prior agreements and undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof and, except as otherwise expressly provided herein or therein, are not intended to confer upon any other Person any rights or remedies hereunder or thereunder.
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the other Party, and any attempt to make any such assignment without such consent shall be null and void. This Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns.
6.9No Third Party Beneficiaries
This Agreement shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
6.10Governing Law; Dispute Resolution
|
(a) |
This Agreement and all claims and causes of action arising in connection herewith shall be governed by, and construed in accordance with, the Laws of Hong Kong, without regard to Laws that may be applicable under conflicts of laws principles (whether of Hong Kong or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than Hong Kong. |
|
(c) |
There shall be three (3) arbitrators. The Parties agree that one arbitrator shall be designated by the claimant side of any arbitration (whether there are one or more claimants) and one arbitrator shall be designated by the respondent side of any arbitration (whether there are one or more respondents). Such arbitrators shall be designated within twenty (20) days of receipt by respondent (or respondents as the case may be) of the notice of arbitration; the third, presiding, arbitrator shall be designated by agreement of the two (2) party-appointed arbitrators within fourteen (14) days of the selection of the party-appointed arbitrators. |
|
(d) |
The seat or place of arbitration shall be Hong Kong. The language of the arbitration shall be English. |
|
(e) |
This agreement to arbitrate shall be binding upon the Parties, their successor and assigns. The arbitrators shall have no authority to award consequential, special or punitive damages. The arbitrators shall award to the prevailing party, if any, as determined by the arbitrators, its reasonable attorneys’ fees and costs. |
22
|
(g) |
This agreement to arbitrate is governed by the Laws of Hong Kong. |
This Agreement may be signed in any number of counterparts, including by facsimile or other electronic transmission each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Party. Until and unless each Party has received a counterpart hereof signed by the other Party, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in .PDF format or by facsimile shall be sufficient to bind the Parties to the terms and conditions of this Agreement. For the purposes of section 8(1) of the Electronic Transactions Act, 2001 of the British Virgin Islands, each Party to this Agreement irrevocably consents to receiving the electronic signature of any other Party to this Agreement that uses an electronic signature to execute this Agreement. For the purposes of this Section 6.11, "electronic signature" shall be construed so as to include the electronic signature of each witness, if any, of an electronic signature used to execute this Agreement.
The Parties agree that if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached, irreparable damage would occur, no adequate remedy at Law would exist and damages would be difficult to determine, and accordingly, subject to the limitations set forth in this Section 6.12, (a) the Parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to specific performance of the terms hereof, (b) the Parties waive any requirement for the securing or posting of any bond in connection with the obtaining of any specific performance or injunctive relief and (c) the Parties will waive, in any action for specific performance, the defense of adequacy of a remedy at Law. The Company’s or the Investor’s pursuit of specific performance at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such Party may be entitled.
This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of or related to this Agreement, the Transaction Documents or the Transactions may only be brought against, the entities that are expressly named as Parties and then only with respect to the specific obligations set forth herein with respect to such named Party. No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or other Representative of any Party, or Affiliate of any of the foregoing (excluding the Company and the Investor), shall have any Liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or Liabilities of the Company or the Investor under this Agreement or the other Transaction Documents (whether for indemnification or otherwise) or of or for any claim based on, arising out of or related to this Agreement, the Transaction Documents or the Transactions.
[Signature pages follow]
23
IN WITNESS WHEREOF, the Investor and the Company have caused this Agreement to be executed as of the date first written above by their respective officers or managers thereunto duly authorized.
Investor:
Greater Sail Limited
By: /s/ Lee Kin Ping GiGi
Name: Lee Kin Ping GiGi
Title: Director
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the Investor and the Company have caused this Agreement to be executed as of the date first written above by their respective officers or managers thereunto duly authorized.
Company:
Nam Tai Property Inc.
By: /s/ Lai Ling Tam
Name: Lai Ling Tam
Title: Executive Chairman of Board of Directors
[Signature Page to Securities Purchase Agreement]
Notice Information
Form of Joinder Agreement
Joinder to
Securities Purchase Agreement
[DATE]
By executing and delivering this joinder, the undersigned hereby agrees to become a party to and to be bound by the terms and conditions of Sections 5.3, 5.4 and 5.5 of that certain Securities Purchase Agreement, dated as of October 5, 2020, by and between Nam Tai Property Inc. and Greater Sail Limited (the “Purchase Agreement”), as an “Investor Party” or “Investor Entity” thereunder.
The undersigned hereby authorizes this signature page to be attached to the Purchase Agreement.
|
INVESTOR:
[INSERT NAME & SIGNATURE BLOCK]
By:_____________________________
Name:
Title:
Address:
Agreed to and accepted:
NAM TAI PROPERTY INC.
By:_____________________________
Name:
Title:
|
|
1 |
Dr. Lai Ling Tam |
2 |
Peter R. Kellogg |
3 |
Dr. Wing Yan (William) Lo |
4 |
Mark Waslen |
5 |
Vincent Fok |
6 |
Si Zong Wu |
7 |
Dr. Aiping Lyu |
SCHEDULE 2.2(B)(III)
Execution Version
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of October 5 , 2020 (the “Effective Date”), by and among Nam Tai Property Inc. (the “Company”), Greater Sail Limited (“Kaisa”) and West Ridge Investment Company Limited (“WR” and together with Kaisa, the “Investors”).
RECITALS
WHEREAS, simultaneously with the execution of this Agreement, (i) the Company and Kaisa has entered into that certain Purchase Agreement (the “Kaisa Purchase Agreement”), pursuant to which the Company will issue and sell and Kaisa will purchase, 16,051,219 Common Shares (the “Kaisa Shares”), subject to the terms and conditions thereof and (ii) the Company and WR has entered into that certain Purchase Agreement (the “WR Purchase Agreement”, and together with the Kaisa Purchase Agreement, the “Purchase Agreements”), pursuant to which the Company will issue and sell and WR will purchase, 2,603,366 Common Shares (the “WR Shares”, and together with the Kaisa Shares, the “Purchase Shares”); and
WHEREAS, it is a condition to the closing of the transactions contemplated by the Purchase Agreements (each, a “Closing”) that, among other things, this Agreement has been executed and delivered by the parties hereto.
NOW, THEREFORE, in consideration of the foregoing premises, mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:
AGREEMENT
1.Definitions
For the purposes of this Agreement:
|
(a) |
Affiliate |
“Affiliate” means, as to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first-mentioned Person.
|
(b) |
Business Day |
“Business Day” means a day other than Saturday, Sunday or any day on which banks located in New York, New York, Hong Kong and the PRC are authorized or obligated by applicable Law to remain closed or close prior to 5:00 p.m. of the applicable local time.
|
(c) |
Common Shares |
“Common Shares” shall mean the common shares of the Company, par value $0.01 per share.
|
(d) |
Form F-3 |
“Form F-3” shall mean any such form under the Securities Act being in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the Securities and Exchange Commission of the United States of America (the “Commission”). Such form permits the inclusion or incorporation of substantial information by reference to other documents filed by the Company with the Commission.
“Governmental Entity” means (a) any national, federal, state, county, municipal, local or foreign government, or other political subdivision thereof, (b) any entity exercising executive, legislative, judicial, regulatory, taxing, administrative or prosecutorial functions of or pertaining to government, (c) any arbitrator, arbitral body or mediator and (d) any self-regulatory organization (including the NYSE, The Stock Exchange of Hong Kong Limited, or any other securities market).
|
(f) |
Holder |
“Holder” shall mean each Investor and any permitted assignee of the Registrable Securities to whom rights under this Agreement have been duly assigned in accordance with this Agreement.
|
(g) |
Law |
“Law” means any applicable federal, national, provincial, state, municipal and local laws, statutes, ordinances, decrees, rules, regulations or Orders of any Governmental Entity, in each case, having the force of law.
|
(h) |
Order |
“Order” means any judgment, order, decision, ruling, determination, writ, injunction, decree or arbitration award
|
(i) |
Outstanding Registrable Securities |
The number of the “Outstanding Registrable Securities” means the number of Common Shares held by the Holders which are Registrable Securities.
|
(j) |
Person |
“Person” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in Section 13(d) of the Exchange Act).
|
(k) |
PRC |
“PRC” means the People’s Republic of China, excluding for purposes of this Agreement only, Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan.
|
(l) |
Registrable Securities |
“Registrable Securities” shall mean (i) the Purchase Shares, (ii) the Common Shares of the Company held by an Investor immediately prior to the applicable Closing, excluding such Common Shares held by Kaisa Group Holdings Limited, an affiliate of Kaisa (“Kaisa Holdings”), that already enjoy the benefit of certain registration rights pursuant to that certain Expense Reimbursement Agreement, dated as of November 16, 2018, by and between the Company and Kaisa Holdings (as such agreement may be amended from time to time) (the “Previously Acquired Shares”), (iii) the Common Shares of the Company acquired by an Investor after the applicable Closing (“Future Acquired Shares”) and (iv) Common Shares obtained by an Investor or an Affiliate of an Investor through any stock split, stock dividend or any similar issuance in respect of the Purchase Shares, the Previously Acquired Shares or the Future Acquired Shares.
2
Notwithstanding the foregoing, “Registrable Securities” shall exclude any Registrable Securities sold by a Person in a transaction in which rights under this Agreement are not expressly assigned in accordance with this Agreement, or any Registrable Securities sold in a public offering, whether sold pursuant to Rule 144 promulgated under the Securities Act of 1933 of the United States of America (“Securities Act”), or in a registered offering, or otherwise.
|
(m) |
Registration Statement |
“Registration Statement” shall mean any registration statement of the Company filed with, or to be filed with, the Commission under the Securities Act which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
2.Demand Registration
|
(a) |
Request by Holder |
If the Company shall receive a written request from the Holders possessing collectively at least twenty percent (20%) of the Outstanding Registrable Securities that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities pursuant to this Section 2, then the Company shall, within ten (10) Business Days of the receipt of such written request, give written notice of such request (“Request Notice”) to all the Holders other than the Holders initiating the registration request pursuant to this Section 2 (the “Initiating Holders”), and use its best efforts to effect, as soon as practicable, but in any event no later than sixty (60) days after receipt of the Request Notice, the registration under the Securities Act of all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders by providing written notice to the Company within twenty (20) days after receipt of the Request Notice, subject only to the limitations set forth in this Section 2.
3
If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then they shall so advise the Company as a part of their request made pursuant to this Section 2 and the Company shall include such information in the written notice referred to in Clause 2(a). In such an event, the right of any Holder to include its, his or her Registrable Securities in such registration shall be conditional upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. All the Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Holders of a majority of the Registrable Securities being registered and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2, if the underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of securities to be underwritten, then the Company shall so advise all the Holders of Registrable Securities which would otherwise be registered and underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be reduced as required by the underwriter(s) and allocated among the Holders of Registrable Securities on a pro rata basis according to the number of the Outstanding Registrable Securities held by each Holder requesting registration (including the Initiating Holders); provided, however, that in all public offering of securities, the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that all shares that are not Registrable Securities and are held by any other Person, including, without limitation, any Person who is an employee, officer or director of the Company (or any subsidiary of the Company) shall first be excluded from such registration and underwriting before any Registrable Securities are so excluded. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter(s), which notice shall be delivered at least ten (10) Business Days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration.
|
(c) |
Maximum Number of Demand Registrations |
The Company shall be obligated to effect only four (4) such registrations pursuant to this Section 2; provided, that a registration requested pursuant to this Section 2 shall not be deemed to have been effected for purposes of this Section 2(c) unless (i) it has been declared effective by the Commission, (ii) it has remained effective for the period set forth in Section 5(a) and (iii) the offering of Registrable Securities pursuant to such registration is not subject to any stop order, injunction or other order or requirement of the Commission (other than any such stop order, injunction, or other requirement of the Commission prompted by act or omission of the Holders of Registrable Securities).
|
(d) |
Deferral |
Notwithstanding the foregoing, if the Company furnishes to the Holder or Holders initiating a registration request under this Section 2 a certificate signed by a director of the Company stating that in the good faith judgment of the Board of Directors of the Company (the “Board”), it would be materially detrimental to the Company and its shareholders for such registration statement to be filed, then the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.
4
All expenses incurred in connection with any registration, pursuant to this Section 2, including without limitation all federal and “blue sky” registration, filing and qualification fees, printer’s and accounting fees, and fees and disbursements of counsel for the Company and the Initiating Holders, shall be borne by the Company. Each Holder participating in a registration pursuant to this Section 2 shall bear such Holder’s proportionate share (based on the total number of shares sold in such registration other than for the account of the Company) of all discounts, commissions or other amounts payable to underwriters or brokers in connection with such offering by the Holders. Notwithstanding the foregoing, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to this Section 2 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered, unless the Holders of a majority of the Outstanding Registrable Securities agree that such registration constitutes the use by the Holders of one (1) demand registration pursuant to Section 2 (in which case such registration shall also constitute the use by all Holders of Registrable Securities of one (1) such demand registration).
3.Piggyback Registrations
The Company shall notify all the Holders of Registrable Securities in writing at least thirty (30) days prior to filing any registration statement under the Securities Act for purposes of effecting a public offering of securities of the Company (other than in respect of any registration statement to be filed pursuant to Section 2 of this Agreement) and will afford each such Holder an opportunity to include in such registration statement all or any part of the Registrable Securities then held by such Holder. Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities held by such Holder shall within twenty (20) days after receipt of the above-described notice from the Company, so notify the Company in writing, and in such notice shall inform the Company of the number of Registrable Securities such Holder wishes to include in such registration statement. If a Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein.
|
(a) |
Underwriting |
If a registration statement under which the Company gives notice under this Section 3 is for an underwritten offering, then the Company shall so advise the Holders. In such event, the right of any such Holder’s Registrable Securities to be included in a registration pursuant to this Section 3 shall be conditional upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All the Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting. Notwithstanding any other provision of this Agreement, if the managing underwriter(s) determine(s) in good faith that marketing factors require a limitation of the number of shares to be underwritten, then the managing underwriter(s) may exclude all of the Registrable Securities from the registration and the underwriting, and the number of shares that may be included in the registration and the underwriting shall be allocated, first to the Company, and second, to each of the Holders requesting inclusion of their Registrable Securities in such registration statement on a pro rata basis based on the total number of Registrable Securities then held by each such Holder; provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that all shares that are not Registrable Securities and are held by any other Person, including, without limitation, any Person who is an employee, officer or director of the Company (or any subsidiary of the Company) shall first be excluded from such registration and underwriting before any Registrable Securities are so excluded. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration.
5
All expenses incurred in connection with a registration pursuant to this Section 3 (excluding underwriters’ and brokers’ discounts and commissions relating to shares sold by the Holders), including, without limitation all federal and “blue sky” registration, filing and qualification fees, printer’s and accounting fees, and fees and disbursements of counsel for the Company, shall be borne by the Company.
|
(c) |
Not Demand Registration |
Registration pursuant to this Section 3 shall not be deemed to be a demand registration as described in Section 2 above. Except as otherwise provided herein, there shall be no limit on the number of times the Holders may request registration of Registrable Securities under this Section 3.
4.Form F-3 Registration
4.1 |
In case the Company shall, at any time after it has become eligible to use Form F-3, receive from any Holder or Holders of ten percent (10%) of all the Outstanding Registrable Securities a written request or requests that the Company effect a registration on Form F-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, then the Company will: |
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(a) |
Notice |
promptly give written notice of the proposed registration and the Holder’s or Holders’ request therefor, and any related qualification or compliance, to all other Holders of Registrable Securities; and
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(b) |
Registration |
as soon as practicable, but in any event no later than sixty (60) days after receipt of the Request Notice, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holders or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within twenty (20) days after the Company provides the notice contemplated by paragraph (a) of this Section 4.1.
4.2 |
Expenses |
The Company shall pay all expenses incurred in connection with each registration requested pursuant to this Section 4 (excluding underwriters’ or brokers’ discounts and commissions relating to shares sold by the Holders), including without limitation federal and “blue sky” registration, filing and qualification fees, printer’s and accounting fees, and fees and disbursements of counsel for the Company and the Holders.
4.3 |
Deferral |
Notwithstanding the foregoing, if the Holder or Holders of twenty percent (20%) of all the Outstanding Registrable Securities request the filing of a registration statement pursuant to this Section 4 and the Company furnishes to such Holder or Holders a certificate signed by a director of the Company stating that in the good faith judgment of the Board, it would be materially detrimental to the Company and its shareholders for such registration statement to be filed, then the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the initiating Holders; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period.
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Form F-3 registrations pursuant to this Section 4 shall not be deemed to be demand registrations as described in Section 2 above. Except as otherwise provided herein, there shall be no limit on the number of times the Holder or Holders may request registration of Registrable Securities under this Section 4.
5.Obligations of the Company
Whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as reasonably possible:
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(a) |
Registration Statement |
prepare and file with the Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective and remain effective for a period of time required for the disposition of such Registrable Securities by the Holders thereof, provided, however, that the Company shall not be required to keep any such registration statement effective for more than ninety (90) days or in the case of registration on Form F-3, a period of three (3) years;
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(b) |
Amendments and Supplements |
prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement;
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(c) |
Prospectuses |
furnish to the Holders such number of conformed copies of the applicable registration statement and each such amendment and supplement thereto (including in each case all exhibits), and copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of the Registrable Securities owned by them that are included in such registration;
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(d) |
Blue Sky |
use its best efforts to register and qualify the securities covered by such registration statement under such other securities or “blue sky” laws of such jurisdictions as shall be reasonably requested by the Holders, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;
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(e) |
Underwriting |
in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement in usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
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promptly notify each Holder of Registrable Securities covered by such registration statement at any time (i) when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings for that purpose, (iii) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Common Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (iv) of any request by the Commission for amendments or supplements to such Registration Statement or the prospectus included therein or for additional information;
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(g) |
Post-Effective Amendments |
upon the occurrence of any event contemplated by Section 5(f)(i) above, promptly prepare a post-effective amendment to such registration statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to the Holders, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with Section 5(f)(i) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Holders shall suspend use of such prospectus and use their reasonable efforts to return to the Company all copies of such prospectus (at the Company’s expense) other than permanent file copies then in such Holder’s possession, and the period of effectiveness of such registration statement provided for above shall be extended by the number of days from and including the date of the giving of such notice to the date Holders shall have received such amended or supplemented prospectus pursuant to this Section 5(g);
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(h) |
Opinion and Comfort Letter |
furnish, at the request of any Holder requesting registration of Registrable Securities, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a “comfort” letter dated as of such date, from the independent auditors of the Company, in form and substance as is customarily given by independent auditors to underwriters in an underwritten public offering and reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities;
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(i) |
Compliance with Securities Law |
comply with all applicable rules and regulations of the Commission, and make earnings statements satisfying the provisions of Section 11(a) of the Securities Act generally available to the Holders no later than 45 days after the end of any twelve-month period (or 90 days, if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in an underwritten public offering, or (ii) if not sold to underwriters in such an offering, beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the registration statement, which statements shall cover said twelve-month periods;
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cause all such Registrable Securities to be listed on each securities exchange or quotation system on which similar securities issued by the Company are listed or traded;
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(k) |
FINRA |
cooperate with each Holder of Registrable Securities covered by such registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel, as such Holder’s expense, in connection with any filings required to be made with FINRA;
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(l) |
Counsel Review |
at least ten (10) days before the filing of such Registration Statement, prospectus or amendments or supplements thereto with the Commission, furnish to one counsel selected by the Holders of a majority of such Registrable Securities copies of such documents proposed to be filed, which documents shall be subject to such counsel’s reasonable review and comment;
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(m) |
Company Disclosure |
make reasonably available for inspection by a maximum of two representatives of the Holders, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by such representative or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the Company’s officers, directors and employees to supply all relevant information reasonably requested by such representative or any such underwriter, attorney, accountant or agent in connection with the registration; and
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(n) |
Transfer Agent |
procure the cooperation of the Company’s transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Holders or the underwriters.
6.Furnish Information
It shall be a condition precedent to the obligations of the Company to take any action pursuant to Sections 2, 3 or 4 that the selling Holder or Holders shall furnish to the Company such information regarding themselves, the Registrable Securities held by them, and the intended method of disposition of such securities as shall be required to timely effect the registration of their Registrable Securities.
7.Indemnification
In the event any Registrable Securities are included in a registration statement under Section 2, 3 or 4:
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(a) |
By the Company |
To the extent permitted by law the Company will indemnify and hold harmless each Holder, the partners, officers and directors of each Holder, any underwriter (as determined in the Securities Act) for such Holder and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended (the “1934 Act”), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):
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(ii) |
the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or |
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(iii) |
any violation or alleged violation by the Company of the Securities Act, the 1934 Act, any federal or state securities law or any rule or regulation promulgated under the Securities Act, the 1934 Act or any federal or state securities law in connection with the offering covered by such registration statement; |
and the Company will reimburse each such Holder, partner, officer or director, underwriter or controlling Person for any legal or other expenses reasonably incurred by them, as incurred, in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in paragraph 7(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, officer, director, underwriter or controlling Person of such Holder.
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(b) |
By Selling Holders |
To the extent permitted by law, each selling Holder will indemnify and hold harmless (on a several, but not joint or joint and several basis) the Company, each of its directors, each of its officers who have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder’s partners, directors or officers or any Person who controls such Holder within the meaning of the Securities Act or the 1934 Act, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, controlling Person, underwriter or other such Holder, partner or director, officer or controlling Person of such other Holder may become subject under the Securities Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs solely in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling Person, underwriter or other Holder, partner, officer, director or controlling Person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action: provided, however, that the indemnity agreement contained in this paragraph 7(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld or delayed; and provided, further, that the total amounts payable in indemnity by a Holder under this paragraph 7(b) in respect of any Violation shall not exceed the net proceeds received by such Holder in the registered offering out of which such Violation arises.
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If the indemnification provided for in this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. If the allocation provided in this paragraph (c) is not permitted by applicable law, the parties shall contribute based upon the relevant benefits received by the Company from the initial offering of the Registrable Securities on the one hand and the net proceeds received by the Holders from the sale of the Registrable Securities on the other.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7(c) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person (as defined in the 1934 Act) guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
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(d) |
Notice |
After receipt by an indemnified party under this Section 7 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 7, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of liability to the indemnified party under this Section 7 to the extent the indemnifying party is prejudiced as a result thereof, but the omission so to deliver written notice to the indemnified party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 7.
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(e) |
Survival |
The obligations of the Company and the Holders under this Section 7 shall survive until the expiration of the applicable statutes of limitation or extensions of such statutes.
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8.No Registration Rights to Third Parties
Without the prior written consent of the Holders of a majority in interest of the Outstanding Registrable Securities, the Company covenants and agrees that it shall not grant, or cause or permit to be created, for the benefit of any Person any registration rights of any kind (whether similar to the demand, “piggyback” or Form F-3 registration rights described in this Agreement, or otherwise) relating to shares or any other voting securities of the Company, other than rights that are subordinate in right to the Holders.
9.[Reserved]
10.Assignment
The rights and obligations under this Agreement may not be assigned without the prior written consent of the other party hereto; provided, however, the rights and obligations of any Holder hereunder may be assigned to an Affiliate of such Holder without the prior written consent of the Company. Any assignment pursuant to this Section 10 shall be invalid unless and until such successor or assign shall have executed and delivered to the Company a joinder in the form attached hereto as Exhibit A.
11.Reports Under the 1934 Act
With a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the Commission that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form F-3, the Company agrees to:
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(a) |
make and keep public information available, as those terms are understood and defined in Rule 144, at all times after the date hereof; |
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(b) |
file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the 1934 Act; and |
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(c) |
furnish to any Holder, so long as such Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after ninety (90) days after the effective date of the first registration statement filed by the Company), the Securities Act and the 1934 Act (at any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form F-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to avail any Holder of any rule or regulation of the Commission that permits the selling of any such securities without registration or pursuant to such form. |
12.Termination of the Company’s Obligations
The Company shall have no obligations pursuant to Sections 2, 3 and 4 with respect to any Registrable Securities proposed to be sold by a Holder in a registration pursuant to Section 2, 3 or 4 (i) at such date after the date hereof at which such Holder, (A) can sell all shares held by it in compliance with Rule 144 without any volume, manner of sale or holding period restriction or (B) holds one percent (1%) or less of the Company’s outstanding Common Shares and all Registrable Securities held by such Holder (together with any Affiliate of a Holder with whom such Holder must aggregate its sales under Rule 144) can be sold in any three (3) month period without registration in compliance with Rule 144.
13.Term and Amendment
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(a) |
Term |
This Agreement shall become effective immediately at the Effective Date, and shall automatically terminate eight (8) years after the Effective Date, unless earlier terminated with the written consent of the Company and the Investors holding a majority of the Outstanding Registrable Securities.
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Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Holders of a majority of the Registrable Securities then outstanding and entitled to the registration rights set forth in this Agreement. Any amendment or waiver effected in accordance with this Section 13 shall be binding upon all parties hereto.
14.Severability
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
15.Entire Agreement
This Agreement and the applicable Purchase Agreements constitute the entire agreement and understanding between the parties in connection with the subject matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and no party hereto has relied or is entitled to rely on any such proposals, representations, warranties, agreements or undertakings.
16.Specific Performance
The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.
17.Counterparts
This Agreement may be executed in any number of counterparts and by the parties on separate counterparts, each of which, when so executed and delivered, shall be an original but all the counterparts shall together constitute one and the same instrument. For the purposes of section 8(1) of the Electronic Transactions Act, 2001 of the British Virgin Islands, each Party to this Agreement irrevocably consents to receiving the electronic signature of any other Party to this Agreement that uses an electronic signature to execute this Agreement. For the purposes of this Section 17, "electronic signature" shall be construed so as to include the electronic signature of each witness, if any, of an electronic signature used to execute this Agreement.
18.Notices and Other Communication
Any notice or other communication to be given under this Agreement shall be in writing and may be sent by post or delivered by hand or given by facsimile or by courier to the address or fax number from time to time designated, the initial address and fax number so designated by each party being set out in Schedule 1 attached hereto. Any such notice or communication shall be sent to the party to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so delivered by hand or given by facsimile such notice or communication shall be deemed received on the date of dispatch and if so sent by post shall be deemed received three (3) Business Days after the date of dispatch (in the case of local mail) and five (5) Business Days after the date of dispatch (in the case of overseas registered/certified mail).
Each Person making a communication hereunder by facsimile shall promptly confirm by telephone to the Person to whom such communication was addressed, but the absence of such confirmation shall not affect the validity of any such communication.
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19.Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the Laws of the Hong Kong, without regard to principles of conflicts of Laws thereof. Any dispute, claim, controversy or difference arising out of or in connection with this Agreement or the transactions contemplated hereby, including any question regarding its existence, validity, interpretation, performance or termination or any dispute regarding any noncontractual obligation arising out of or in connection with it (a “Dispute”), shall be determined by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the HKIAC Administered Arbitration Rules then in effect. The award may be entered in any Court having competent jurisdiction thereof. There shall be three (3) arbitrators. The Company and the Investors agree that one arbitrator shall be designated by the claimant side of any arbitration (whether there are one or more claimants) and one arbitrator shall be designated by the respondent side of any arbitration (whether there are one or more respondents). Such arbitrators shall be designated within twenty (20) days of receipt by respondent (or respondents as the case may be) of the notice of arbitration; the third, presiding, arbitrator shall be designated by agreement of the two (2) party-appointed arbitrators within fourteen (14) days of the selection of the party-appointed arbitrators. The seat or place of arbitration shall be Hong Kong. The language of the arbitration shall be English.
This agreement to arbitrate shall be binding upon the Company and the Investors, and their respective successor and assigns. The arbitrators shall have no authority to award consequential, special or punitive damages. The arbitrators shall award to the prevailing party, if any, as determined by the arbitrators, its reasonable attorneys’ fees and costs.
Except as may be required by Law, no party hereto may disclose the existence, content (including all submissions made to the arbitral tribunal and the transcript of any proceedings) or any and all orders, decisions, and awards issued by the arbitral tribunal without the prior written consent of the other party hereto, unless necessary to protect or pursue a legal right, including the right to seek annulment, recognition, and/or enforcement of any award.
This agreement to arbitrate is governed by the Laws of Hong Kong
20.Aggregation of Shares
All Common Shares held or acquired by Affiliates of an Investor shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.
21.Effectiveness
Notwithstanding anything to the contrary in this Agreement, this Agreement shall only become effective subject to, and contemporaneously with, the closing of the transactions contemplated by the Purchase Agreement.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
COMPANY |
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Nam Tai Property Inc. |
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By: |
/s/ Lai Ling Tam |
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Name: |
Lai Ling Tam |
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Title: |
Executive Chairman of Board of Directors |
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[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
INVESTOR |
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Greater Sail Limited |
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By: |
/s/ Lee Kin Ping GiGi |
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Name: |
Lee Kin Ping GiGi |
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Title: |
Director |
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
INVESTOR |
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West Ridge Investment Company Limited |
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By: |
/s/ Lee Kin Ping GiGi |
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Name: |
Wai Yin Luk |
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Title: |
Director |
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Form of Joinder
[attached]
Joinder to
Registration Rights Agreement
[DATE]
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By executing and delivering this joinder, the undersigned hereby agrees to become a party to and to be bound by the terms and conditions of that certain Registration Rights Agreement, dated as of October 5, 2020, by and among Nam Tai Property Inc., Greater Sail Limited and West Ridge Investment Company Limited (the “Registration Rights Agreement”), a “Holder” thereunder. |
The undersigned hereby authorizes this signature page to be attached to the Registration Rights Agreement. |
INVESTOR:
[INSERT NAME & SIGNATURE BLOCK]
By:_____________________________
Name:
Title:
Address:
Agreed to and accepted:
NAM TAI PROPERTY INC.
By:_____________________________
Name:
Title:
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SCHEDULE 1
ADDRESSES AND FAX NUMBERS FOR NOTIFICATION
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