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


after the consummation of the Merger, (i) cause Jiandatong to issue to the Lead Investor Nominee of each Lead Investor such equity interests of such VIE representing 1% of all of its outstanding share capital, at the minimum price permitted by applicable Law; (ii) cause the execution of the Amended Control Documents for Jiandatong in the same manner as described in clause (ii) above; and (iii) cause the execution of the shareholders agreement and the articles of association of Jiandatong in the same manner as described in clause (iii) above.  Notwithstanding anything to the contrary set forth herein, if (1) YFC and its Affiliates collectively cease to hold at least 5% of HoldCo’s outstanding share capital, and (2) Alibaba and its Affiliates collectively cease to hold at least 5% of HoldCo’s outstanding share capital, then, the rights of YFC or Alibaba, as applicable, and the relevant Lead Investor Nominee under this Section 1.11 shall automatically and immediately terminate and it shall promptly take all actions and execute all documents to divest its or the relevant Lead Investor Nominee’s equity interests in the VIEs to the relevant VIE or an unrelated third party designated by the board or directors of HoldCo for nominal consideration and cause the Articles of Association of the VIEs to be amended to remove the provisions described in this Section 1.11.  Each Beneficial Owner shall take all actions within its powers and abilities to procure that the share pledge agreement entered into by each VIE, its WFOE and its Onshore Shareholders be registered with local governmental authority promptly after the execution of such agreement, with the amount of secured debts as high as the fair value of such VIE. The Beneficial Owners and the Rollover Shareholders hereby agree to exercise their voting rights and take any other actions required to effect the foregoing covenant under this Section 1.11.


1.12                        Additional Cash Contribution.  Each of the Cash Investors agrees that, upon the request of the Lead Investors, such Cash Investor shall contribute at Closing its pro rata share (in relation to all Cash Investors based on their respective Commitment Percentages) of up to US$200,000,000 to HoldCo for the purposes of repayment of existing debts of the Group Companies and the operations of the Group Companies (the “Additional Cash Contributions”); provided that Top Fortune Win Ltd. may elect to participate in such Additional Cash Contributions on the same terms as the Cash Investors, in which case the Additional Cash Contribution shall be allocated among Cash Investors and Top Fortune Win Ltd. based on their respective Commitment Percentages.  The Additional Cash Contributions will be completed through subscription of additional HoldCo Shares and the per HoldCo Share price of such subscription shall be the same as the per HoldCo Share price in the capital contributions made under the Equity Commitment Letters.


1.13                        Special Committee Consent and Fiduciary Duty.  Notwithstanding anything herein to the contrary, the Parties agree that (i) no change to the composition of the Buyer Group Parties or adjustments to any Investor’s Equity Commitment pursuant to this Agreement shall be made without the prior written consent of the Company (with the Special Committee’s approval); and (ii) no Beneficial Owner is restricted by any provision of this Agreement from taking any actions required to discharge his fiduciary duties as a director and/or officer of the Company.


2.                                      REPRESENTATIONS, WARRANTIES AND COVENANTS.


2.1                               Authority; Enforceability; No Conflict. Each Party hereby, severally but not jointly, represents and warrants to the other Parties that: (i) if such Party is a corporate entity, it has the requisite power and authority to execute, deliver and perform this Agreement, (ii) if such



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