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SEC Filings

SC 13D
TOP FORTUNE WIN LTD. filed this Form SC 13D on 04/05/2018
Entire Document


which each Guarantor agrees, subject to the terms and conditions set forth therein, to pay its proportion of the Total Termination Fee and Expenses (each, a “Limited Guarantee” and together with this Agreement, the Support Agreement and all the Equity Commitment Letters, the “Interim Documents”).


WHEREAS, the Parties wish to agree to certain terms and conditions that will govern the actions of HoldCo, Parent and Merger Sub and the relationship among the Investors and the Beneficial Owners with respect to the Transactions.


NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual agreements and covenant set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:


1.                                      AGREEMENTS AMONG THE INVESTORS.


1.1                               Actions Under the Merger Agreement.


(a)                                 Subject to Section 1.2 hereof, the Lead Investors and Mr. Lee Ligang Zhang (“Mr. Zhang” or the “Founder”), acting jointly, may cause HoldCo, Parent and Merger Sub to take any action or refrain from taking any action in order to comply with their obligations, satisfy their closing conditions or exercise their rights under the Merger Agreement, including, without limitation, determining that the conditions to closing specified in Sections 7.1, 7.2 and 7.3 of the Merger Agreement (the “Closing Conditions”) have been satisfied, waiving compliance with any agreement or condition in the Merger Agreement (including any Closing Condition), amending or modifying the Merger Agreement and determining to close the Merger; provided that the Lead Investors and Mr. Zhang may not cause Parent and Merger Sub to amend the Merger Agreement in a way that has an impact on any Investor or Beneficial Owner that is different from the impact on the other Investors and Beneficial Owners in a manner that is materially adverse to such Investor or Beneficial Owner without such Investor’s or Beneficial Owner’s written consent. Parent shall not, and the Investors and the Beneficial Owners shall not permit Parent or Merger Sub to, determine that the Closing Conditions have been satisfied, waive compliance with any agreement or condition in the Merger Agreement (including any Closing Condition), amend or modify the Merger Agreement or determine to close the Merger unless such action has been approved in advance in writing by the Lead Investors and Mr. Zhang. Parent and Merger Sub agree not to take any action with respect to the Merger Agreement, including granting or withholding of waivers and entering into amendments, unless such actions are in accordance with this Agreement. Notwithstanding any provision of this Agreement to the contrary, from and after the time YFC or Alibaba becomes a Failing Investor (as defined below), the approval or consent of such Failing Investor shall not be required for any purposes under this Agreement; provided that any Failing Investor that ultimately participates in the Merger as a result of the Closing Investors (as defined below) exercising their rights to seek specific performance hereunder or the Company exercising its specific performance right under the Merger Agreement shall no longer be deemed a “Failing Investor”, and its/his approval or consent rights shall be restored as of the date such previously Failing Investor funds its/his Equity Commitment.



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