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

 

which consent shall not be unreasonably withheld or delayed; provided that if the Lead Investors withhold such consent, the Company and the Beneficial Owners shall not be obligated to cause such VIE to issue the aforesaid equity interests to any Lead Investor Nominee), (ii) each Beneficial Owner shall take all actions within its powers and abilities to procure each VIE other than Jiandatong to enter into relevant amended and restated Control Documents at the Closing to refelct the change in ownership of equity interests of such VIE resulting from the issurance of equity interests described in clause (i) above, and to incorporate the amendments specifically set forth under Schedule E attached hereto, and immaterial adjustments thereto or other immaterial amendments in each case requested by the Lead Investors to the Company in writing with necessary detail, which amended and restated Control Documents shall replace the relevant original Control Documents with effect at the Effective Time (such amended and restated Control Documents together with any other Control Documents that are amended and restated with effect at the Effective Time, the “Amended Control Documents”), and (iii) each Beneficial Owner shall take all actions within its powers and abilities to procure each VIE other than Jiandatong to amend and restate its shareholders agreement (if any, or if necessary to have such agreement at the discretion of each Lead Investor) and, to the extent permitted by the relevant department of the Administration for Industry and Commerce, amend and restate its Articles of Association, in each case which will become effective at the Effective Time,  to specifically (A) provide that each Lead Investor Nominee shall have the right to appoint one member to the board of directors of such VIE, which director may only be removed by such Lead Investor Nominee; (B) provide that from and upon a breach by such VIE or its Onshore Shareholder of any provisions of the applicable Amended Control Documents, or the termination of such Amended Control Documents, all resolutions or action by the board of directors or shareholders of such VIE shall require the prior written consent of (x) each Lead Investor Nominee for so long as the Lead Investor appointing such Lead Investor Nominee remains a shareholder of HoldCo and such Lead Investor Nominee remains a shareholder of such VIE, or (y) each director appointed by each Lead Investor Nominee for so long as such Lead Investor Nominee has the right to appoint a director on the board of directors of such VIE and the Lead Investor which nominated such Lead Investor Nominee has the right to appoint a director on the board of directors of HoldCo; (C) provide that from and upon a breach by such VIE or its Onshore Shareholder of any provisions of the applicable Amended Control Documents, or the termination of such Amended Control Documents, each Lead Investor will have a call option to purchase (by itself, or through its Lead Investor Nominee or another person designated by such Lead Investor, subject to compliance with law) equity interests in such VIE from the Onshore Shareholders or subscribe for newly issued equity interests of such VIE, at the minimum consideration permitted by law, so that the aggregate shareholding percentage of such Lead Investor, its Lead Investor Nominee and its designee, as applicable, in such VIE will be the same as the shareholding percentage of such Lead Investor in the HoldCo; and (D) incorporate in the articles of association of the relevant VIE to the extent permitted by applicable law the rights and interests of each Lead Investor under the constitutional documents and shareholder agreements of the HoldCo, as requested by such Lead Investor to the Company in writing setting forth specific requested provisions, provided that the provisions of the agreements and articles of association described in clauses (ii) and (iii) above shall comply with applicable law and, for the avoidance of doubt, the issuance of equity interests and the effectiveness of the amendments and restatements and shareholders agreements described in clauses (i) through (iii) above shall be conditional upon consummation of the Merger. The Beneficial Owners shall, if so requested in writing by the Lead Investors upon and

 

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