SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 6-K

 

Report of Foreign Private Issuer

Pursuant to Rule 13a-16 or 15d-16 of

the Securities Exchange Act of 1934

 

January 2023

 

Commission File Number: 001-37925

 

GDS Holdings Limited

(Registrant’s name)

 

F4/F5, Building C, Sunland International

No. 999 Zhouhai Road

Pudong, Shanghai 200137

People’s Republic of China

(Address of principal executive offices)

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:

 

Form 20-F x Form 40-F ¨

 

Indicate by check mark if the registrant is submitting the Form 6-K on paper as permitted by Regulation S-T Rule 101(b)(1): ¨

 

Indicate by check mark if the registrant is submitting the Form 6-K on paper as permitted by Regulation S-T Rule 101(b)(7): ¨

 

 

 

 

 

 

EXHIBITS

 

4.1 Note Purchase Agreement, dated January 11, 2023, among the Registrant and the Persons Listed in Schedule I, relating to the issuance of the Registrant’s 4.50% Convertible Senior Notes due 2030 in the aggregate principal amount of US$580 million

 

4.2 Indenture, dated January 20, 2023, between the Registrant and The Bank of New York Mellon, London Branch as Trustee, relating to the issuance of Registrant’s 4.50% Convertible Senior Notes due 2030 in the aggregate principal amount of US$580 million

  

2 

 

 

SIGNATURES

 

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.

 

  GDS Holdings Limited
     
Date: January 31, 2023 By: /s/ William Wei Huang
  Name: William Wei Huang
  Title: Chief Executive Officer

 

3 

 

Exhibit 4.1

EXECUTION VERSION

NOTE PURCHASE AGREEMENT

dated as of January 11, 2023

by and among

GDS Holdings Limited

and

The Persons Listed in Schedule 1

4.50% Convertible Senior Notes due 2030

TABLE OF CONTENTS

Article I Purchase and Sale; Consideration; and Closings 1
Section 1.1. Purchase and Sale      1
Section 1.2. Closings      1
Section 1.3. Closing Conditions      2
Article II Representations and Warranties 5
Section 2.1. Representations and Warranties of the Company      5
Section 2.2. Representations and Warranties of each Investor      15
Article III Covenants      19
Section 3.1. Filings; Other Actions      19
Section 3.2. Expenses      20
Section 3.3. Confidentiality      21
Section 3.4. Conduct of the Business      21
Section 3.5. Commercially Reasonable Efforts      22
Section 3.6. Use of Proceeds      22
Article IV Additional Agreements      22
Section 4.1. Compliance with Laws      22
Section 4.2. Legend      23
Section 4.3. Indemnity      23
Article V Termination 25
Section 5.1. Termination      25
Section 5.2. Effects of Termination      26
Article VI [INTENTIONALLY OMITTED]      26

ii

Article VII Miscellaneous      26
Section 7.1. Survival      26
Section 7.2. Amendment      26
Section 7.3. Waivers      26
Section 7.4. Counterparts      27
Section 7.5. Governing Law      27
Section 7.6. Dispute Resolution      27
Section 7.7. Notices      28
Section 7.8. Entire Agreement.      28
Section 7.9. Definitions      28
Section 7.10. Captions 32
Section 7.11. Severability 33
Section 7.12. No Third-Party Beneficiaries 33
Section 7.13. Public Announcements 33
Section 7.14. Specific Performance 33

LIST OF SCHEDULES

Schedule 1:Investors and Investor Notes
Schedule 2:Company Disclosure Schedule
Schedule 3:Notices
Schedule 4:Company’s Bank Account Details

LIST OF EXHIBITS

Exhibit A:Form of Officer’s Certificate from the Company
Exhibit B:Form of Opinion of Cayman Islands Counsel
Exhibit C:Form of Indenture

iii

INDEX OF DEFINED TERMS

Term Location
2025 Convertible Notes Section 7.9(1)
2029 Convertible Notes Section 7.9(2)
ADS Section 7.9(1)
Affiliate Section 7.9(4)
Affiliated Section 7.9(4)
Agreement Preamble
Anti-Bribery Laws Section 2.1(s)
Arbitration Section 7.6
Articles of Association Section 7.9(5)
Bankruptcy and Equity Exception Section 2.1(c)(1)
Basket Section 4.3(a)
Beneficial Ownership Section 7.9(6)
Beneficially Own Section 7.9(6)
Benefit Plan Section 7.9(7)
Board Section 1.3(a)(v)
Business Day Section 7.9(8)
Class A Ordinary Shares Section 2.1(b)
Class B Ordinary Shares Section 2.1(b)
Closing Section 1.2(a)
Closing Date Section 1.2
Company Preamble
Company Disclosure Documents Section 2.1
Company Disclosure Schedule Section 2.1
Company Indemnified Parties Section 4.3(b)
Company Reports Section 2.1(e)
Company Share Option Plans Section 7.9(9)
Company Systems Section 7.9(9)
Company’s knowledge Section 7.9(17)
Compelled Disclosure Section 3.3
control Section 7.9(4)
De Minimis Claim Section 4.3(a)
Debt Agreement Section 7.9(11)
Depositary Section 3.1(e)
DigitalLand Section 2.2(e)
Dispute Section 7.6
e-mail Section 7.4
Environmental Law Section 2.1(t)
EPP Section 2.2(e)
EPP Information Section 2.2(e)
Exchange Act Section 2.1(e)
Financial Statements Section 2.1(d)
Fund Section 7.9(12)

iv

Fundamental Representations Section 7.9(12)
GAAP Section 2.1(d)(3)
Global Note Section 1.2(b)(i)
Governmental Entity Section 1.3(a)(i)
Governmental Order Section 1.3(a)(i)
Group Companies Section 7.9(13)
Hazardous Materials Section 7.9(14)
HKIAC Section 7.6(a)
HKIAC Rules Section 7.6(b)
HKSE Approval Section 1.3(viii)
Hong Kong Section 7.9(15)
Hong Kong Stock Exchange Section 2.1(c)(3)
Indemnified Party Section 4.3(c)
Indemnifying Party Section 4.3(c)
Indenture Recitals
Information Section 3.3
Intellectual Property Section 2.1(u)
Investor Indemnified Party Section 4.3(a)
Investor Notes Section 1.1
Investor Purchase Price Section 1.1
Investors Preamble
J.P. Morgan Section 2.1(v)
knowledge of the Company Section 7.9(16)
Lien Section 7.9(17)
Long Stop Date Section 7.9(19)
Losses Section 4.3(a)
Material Adverse Effect Section 7.9(20)
Material Customer Contract Section 7.9(21)
NASDAQ Section 2.1(c)(3)
NDRC Section 2.1(c)(1)
NDRC Certificate Section 2.1(c)(1)
NDRC Circular Section 2.1(c)(1)
New ADS Section 2.1(o)
New Shares Section 2.1(o)
Notes Recitals
Notice of Arbitration Section 7.6(b)
Ordinary Shares Section 2.1(b)
Permits Section 2.1(m)
Permitted Liens Section 2.1(g)
person Section 7.9(22)
Post-Issuance Reporting to the NDRC Section 2.1(c)(2)
PRC Section 7.9(23)
Required Disclosing Party Section 3.3
Sanctions Section 2.1(s)
SEC Section 2.1
Securities Section 7.9(24)

v

Securities Act Section 2.1(e)
Subject Securities Section 7.9(25)
Subsidiary Section 7.9(26)
Tax Representations Section 7.9(27)
Transaction Documents Recitals
VIE Agreements Section 7.9(28)

vi

THIS NOTE PURCHASE AGREEMENT, dated as of January 11, 2023 (this “Agreement”), is made among GDS Holdings Limited, an exempted company incorporated under the laws of the Cayman Islands (the “Company”), and the persons listed on Schedule 1 hereto under the heading “Investor Name” (collectively referred to as the “Investors”, and individually, an “Investor”).

RECITALS:

A.            The Investment. The Investors intend to purchase from the Company, and the Company intends to issue and sell to the Investors, the securities as described herein. The securities to be purchased by the Investors at the Closing are unsecured 4.50% convertible senior notes, convertible into fully paid Class A Ordinary Shares (or such Class A Ordinary Shares in the form of ADSs) of the Company (the “Notes”).

B.            Indenture. At the Closing, the Notes will be issued pursuant to an indenture (the “Indenture”), between the Company and The Bank of New York Mellon, London Branch, as trustee, substantially in the form attached as Exhibit C hereto, to be dated as of the Closing Date.

C.            Transaction Documents. The term “Transaction Documents,” with respect to the Company and an Investor, refers to this Agreement, the Indenture, the Global Note (as defined below) and all other documents or written agreements entered into or delivered by the Company and such Investor in connection with the transactions contemplated hereby or thereby.

D.            Single Series of Notes. Any Investor Notes (as defined below) issued to an Investor shall be fungible with the Investor Notes issued to any other Investor and the Notes, in each case on or around the Closing, in an aggregate principal amount of US$580,000,000.

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, the parties hereto agree as follows:

Article I

 

Purchase and Sale; Consideration; and Closings

Section 1.1.         Purchase and Sale. On the terms and subject to the conditions set forth herein, at the Closing, the Company shall issue and sell to each Investor, and each Investor shall purchase from the Company, Notes with a principal amount equal to the principal amount set forth opposite such Investor’s name under the column titled “Principal Amount of Notes” under Schedule 1 (such Notes to be purchased by such Investor, its “Investor Notes”) for an aggregate purchase price as set forth opposite such Investor’s name under the column titled “Purchase Price” under Schedule 1 (with respect to such Investor, its “Investor Purchase Price”). The obligations of the Investors to purchase the Notes are several and not joint.

Section 1.2.         Closings.

(a)           Subject to the satisfaction (or, where permissible, waiver) of the conditions to the closing set forth in SECTION 1.3, the closing of the purchase by the Investors of their

 

 

respective Investor Notes shall take place electronically, through the exchange of documents via electronic mail (the “Closing” with respect to such Investor), on January 20, 2023, subject to all of the conditions set forth in SECTION 1.3 having been satisfied or waived on or prior to such date (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or such other date as agreed by the parties hereto in writing (the date on which the Closing actually occurs with respect to an Investor, the “Closing Date”), but in any event prior to the Long Stop Date. For the avoidance of doubt, (i) the Company’s agreement with each Investor hereunder is a separate agreement and the sale and issuance of Investor Notes to each Investor hereunder is a separate sale and issuance, and (ii) no Investor shall have any rights pursuant to the Articles of Association in respect of the Investor Notes that such Investor has agreed to purchase pursuant to this Agreement until Closing has occurred in respect of such Investor.

(b)           At the Closing with respect to an Investor,

(i)             the Company shall (A) deliver the Investor Notes that such Investor agreed to purchase under SECTION 1.1 to such Investor through Euroclear Bank SA/NV as operator of the Euroclear System and Clearstream Banking S.A. by issuing a global note in definitive form representing the aggregate principal amount of the Notes (the “Global Note”), and (B) deliver to such Investor such other documents and deliveries as set forth in SECTION 1.3(a);

(ii)            the Closing of the issue of the Investor Notes to such Investor shall be effected on a free of payment (FoP) basis and such Investor shall, severally and not jointly, (A) purchase from, and pay or cause to be paid to, the Company the Investor Purchase Price for its Investor Notes purchased under SECTION 1.1 by wire transfer of immediately available funds in United States dollars to the account designated by the Company in Schedule 4 hereto (it being understood that such payment shall be made at the Closing subject to the Investor Notes having been delivered to the custodian account of such Investor through Euroclear Bank SA/NV as operator of the Euroclear System and Clearstream Banking S.A., provided that such Investor shall provide the Company with a confirmation in writing on the same Business Day of receipt of the Investor Note followed by a copy of the wire transfer receipt within two (2) Business Days), and (B) deliver all other items required to be delivered pursuant to SECTION 1.3(b).

Section 1.3.         Closing Conditions.

(a)           With respect to an Investor, the several and not joint obligations of such Investor to consummate its Closing is subject to the fulfillment prior to or contemporaneously with the Closing, or the waiver by such Investor (if permissible under applicable laws), of each of the following conditions:

(i)             no judgment, injunction, order, ruling, verdict, decree or other similar determinations or finding (a “Governmental Order”) by, before or under the supervision of any court, administrative agency or commission or other governmental authority or instrumentality, whether federal, state, local or foreign,

 2 

 

or any applicable industry self-regulatory organization (each, a “Governmental Entity”), and no law or regulation, that would have the effect of prohibiting the Closing shall be in effect and no lawsuit commenced by any Governmental Entity seeking to prohibit the Closing shall be pending;

(ii)            (A) each of the Fundamental Representations shall be true and accurate in all respects, (B) each of the representations and warranties of the Company set forth in SECTION 2.1 (other than the Fundamental Representations) that contain any “materiality”, “material adverse effect”, “Material Adverse Effect” or similar qualifiers therein shall be true and accurate in all respects, and (C) any other representations and warranties of the Company set forth in SECTION 2.1 shall be true and accurate in all material respects, in each case of (A), (B) and (C), as of the date hereof and the Closing Date as if made on such Closing Date with reference to facts and circumstances existing on the Closing Date (except for such representations and warranties that speak as of a specified date, which representations and warranties shall be true and accurate in such respects as described above, in each case as of such specified date);

(iii)           the Company shall have performed in all material respects all obligations required to be performed by it at or prior to or contemporaneously with the Closing under this Agreement;

(iv)           the Company shall have delivered to such Investor a duly executed Officer’s Certificate in the form set forth in Exhibit A hereto;

(v)            the Company shall have delivered to such Investor a copy of NDRC Certificate (as defined below);

(vi)           all corporate and other actions required to be taken by the Company in connection with the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a named party and the consummation of the transactions contemplated hereunder and thereunder, including the issuance of the Notes, shall have been completed and the Company shall have delivered to such Investor a true and complete copy of the duly passed resolutions of the Board of Directors of the Company (the “Board”) (in the form of minutes or otherwise), or the relevant extracts thereof, evidencing the foregoing;

(vii)          from the date of this Agreement, no Material Adverse Effect shall have occurred;

(viii)         the Listing Committee of the Hong Kong Stock Exchange shall have granted the approval for the listing of and the permission to deal in all the New Shares upon conversion of the Investor Notes, and such approval remains valid and effective (collectively, the “HKSE Approval”);

(ix)            Conyers Dill & Pearman, Cayman Islands counsel for the Company, shall have delivered to such Investor their written opinion, dated as of the Closing Date, in the form set forth in Exhibit B hereto; and

 3 

 

(x)             the Company shall have delivered to such Investor a copy of each Transaction Document to which it is a named party and the Indenture, duly executed by the Company.

(b)           The obligation of the Company to consummate the Closing with respect to an Investor is subject to the fulfillment prior to such Closing, or the waiver by the Company (if permissible under applicable laws), of each of the following conditions:

(i)             no Governmental Order by, before or under a Governmental Entity, and no law or regulation, that would have the effect of prohibiting such Closing shall be in effect, and no lawsuit commenced by any Governmental Entity seeking to prohibit such Closing shall be pending;

(ii)            the representations and warranties of such Investor set forth in SECTION 2.2 of this Agreement shall be true and correct in all material respects as of the date hereof and as of such Closing Date (except to the extent such representations and warranties are made as of a specified date, in which case such representations and warranties shall be true and correct in all material respects as of such date);

(iii)           such Investor shall have performed in all material respects all obligations required to be performed by it at or prior to or contemporaneously with such Closing under this Agreement;

(iv)           the Listing Committee of the Hong Kong Stock Exchange shall have granted the approval for the listing of and the permission to deal in all the New Shares upon conversion of the Investor Notes, and such approval remains valid and effective;

(v)            such Investor shall have delivered to the Company a copy of each Transaction Document to which it is a named party, duly executed by such Investor; and

(vi)           all corporate and other actions required to be taken by such Investor in connection with the execution, delivery and performance by such Investor of this Agreement and the other Transaction Documents to which it is a named party and the consummation of the transactions contemplated hereunder and thereunder, shall have been completed and such Investor shall have delivered to the Company (x) a true and complete copy of the duly passed resolutions of the Board of Directors or similar corporate governance body of such Investor (in the form of minutes or otherwise), or the relevant extracts thereof, evidencing the foregoing, or (y) a true and complete copy of any such other evidence, or the relevant extracts thereof, reasonably satisfactory to the Company.

 4 

 

Article II

 

Representations and Warranties

Section 2.1.         Representations and Warranties of the Company. The Company represents and warrants to each Investor as of the date hereof and as of the Closing Date with respect to such Investor (except to the extent made only as of a specified date, in which case as of such date) that, except as set forth (i) in the reports, registrations, documents, filings, statements, schedules and submissions together with any required amendments thereto filed or furnished with the U.S. Securities and Exchange Commission (the “SEC”) and/or the Stock Exchange of Hong Kong prior to the date hereof (the “Company Disclosure Documents”), in each case which are publicly available or (ii) in the Company Disclosure Schedule attached hereto as Schedule 2 (the “Company Disclosure Schedule”):

(a)            Incorporation, Organization and Good Standing. The Company and each other Group Company have been duly incorporated or organized, as the case may be, and are validly existing and in good standing (or the jurisdictional equivalent) under the laws of their respective jurisdictions of incorporation or organization, are duly licensed or qualified to do business and are in good standing (or the jurisdictional equivalent) in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such license or qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except, only with respect to all of the Group Companies other than the Company, where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b)           Capitalization. The authorized share capital of the Company is US$100,100.00 and consists of (x) 1,800,000,000 Class A ordinary shares, par value US$0.00005 per share (the “Class A Ordinary Shares”), and (y) 200,000,000 Class B ordinary shares, par value US$0.00005 per share (the “Class B Ordinary Shares”, together with the Class A Ordinary Shares, the “Ordinary Shares”), and (z) 2,000,000 preferred shares, par value US$0.00005 per share and other than (1) 33,707,864 Class A Ordinary Shares reserved for issuance upon the conversion of the Series A convertible preferred shares as described in clause (z) below, (2) 46,526,048 Class A Ordinary Shares reserved for issuance upon the conversion of the 2025 Convertible Notes and (3) 99,200,000 Class A Ordinary Shares reserved for issuance upon the conversion of the 2029 Convertible Notes, in each case which reserved Class A Ordinary Shares may be issued between the date hereof and the Closing Date of an Investor under the terms of such Series A convertible preferred shares, the terms of the 2025 Convertible Notes and the terms of the 2029 Convertible Notes, there are (x) 1,456,842,655 Class A Ordinary Shares issued and outstanding (of which 57,232,624 Class A Ordinary Shares have been reserved for future delivery upon exercise or vesting of share awards granted under the Company Share Option Plans as of the date hereof), (y) 67,590,336 Class B Ordinary Shares issued and outstanding and (z) 150,000 Series A convertible preferred shares issued and outstanding, which may be converted into Class A Ordinary Shares between the date hereof and the Closing Date of an Investor.  All the outstanding shares of the Company have been duly and validly authorized and issued and are fully paid and non-assessable (which term when used herein means that no further sums are required to be paid by the holders

 5 

 

thereof in connection with the issue thereof) and are not subject to any pre-emptive, subscription rights, anti-dilutive rights, rights of first refusal or similar rights other than as set out in the Articles of Association, the articles of association or equivalent charter documents of any of the other Group Companies, the shareholder agreements or joint venture agreements of the Group Companies that are joint ventures, the Company Disclosure Documents and the Company Disclosure Schedule. Except for the rights of the Investors to purchase their respective Investor Notes pursuant to this Agreement (and the conversion right in connection therewith), and rights set forth in the other Transaction Documents, the Articles of Association, the Company Disclosure Documents and the Company Disclosure Schedule, there are no outstanding rights (including pre-emptive rights), warrants, or instruments convertible into or exchangeable for, any shares or other equity interests in the Company or any of the other Group Companies, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any shares of the Company or any of the other Group Companies, any such convertible or exchangeable securities or any such rights, warrants or options. All of the outstanding shares or other equity interests of each Group Company owned or controlled, directly or indirectly, by the Company have been duly and validly authorized and issued, are fully paid in accordance with their respective articles of associations and non-assessable (which term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue thereof) and are owned or controlled directly or indirectly by the Company, free and clear of any Liens (other than Liens under the existing loan facilities of the Group Companies and transfer restrictions imposed by applicable securities or other laws). Other than (i) as set out in the Company Disclosure Documents and the Company Disclosure Schedule, (ii) the VIE Agreements and (iii) the Transaction Documents, no Group Company is a party to any stockholders’ agreement, voting trust agreement, registration rights agreement or other similar agreement or understanding relating to the disposition, voting or dividends with respect to any equity interests in the Company. From the date hereof through the Closing Date, except pursuant to the Transaction Documents, the transactions contemplated hereby and thereby and as contemplated in the first sentence of this SECTION 2.1(b), the Company shall not have (i) issued, approved or agreed to the issuance of any Ordinary Shares, or any securities convertible into or exchangeable or exercisable for Ordinary Shares, (ii) reserved for issuance any Ordinary Shares, (iii) repurchased or redeemed, or approved or agreed to the repurchase or redemption of, any Ordinary Shares or any securities convertible into or exchangeable or exercisable for Ordinary Shares or (iv) declared or paid any dividends or other distributions on the Ordinary Shares.

(c)           Authorization.

(1)           The Company has the corporate power and authority to enter into, execute and deliver the Transaction Documents and to carry out and perform its obligations thereunder. The execution, delivery and performance of the Transaction Documents by the Company and the consummation of the transactions contemplated thereby, have been duly authorized by all requisite actions on the part of the Company. The Transaction Documents constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights generally and general equitable principles (the “Bankruptcy and Equity Exception”).

 6 

 

(2)           Subject to the Company’s receipt of the HKSE Approval as described in SECTION 1.3(a)(viii), neither the execution, delivery and performance by the Company of any of the Transaction Documents, nor the consummation of the transactions contemplated thereby (i) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination, modification or acceleration of, or result in the creation or imposition of, any Lien upon any property, right or asset of the Company or any other Group Company pursuant to any agreement, contract or instrument to which the Company or any other Group Company is a party or by which any such property, right or asset is bound, (ii) violate any law, statute, rule or regulation or any judgment, ruling, order, writ, injunction or decree applicable to the Company or any other Group Company or any of their respective properties, licenses or assets, or (iii) violate, conflict with or result in the breach of any provision of the Articles of Association or similar organizational documents of the Group Companies, except, in the case of each of clauses (i) and (ii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company (through a PRC Subsidiary) has obtained an enterprise foreign debt filing certificate dated January 25, 2022 from the National Development and Reform Commission (the “NDRC”, and such certificate, the “NDRC Certificate”) in connection with the Notes and such certificate has not been withdrawn or subject to any condition which has not been fulfilled or performed as of the Closing, except for the reports by such PRC Subsidiary to NDRC on the requisite information and documents within ten (10) Business Days in the PRC after the date of each issuance of the Investor Notes hereunder in accordance with the Circular on Promoting the Reform of the Administrative System on the Issuance by Enterprises of Foreign Debt Filings and Registrations (国家发展改革委关于推进企业发行外债备案登记制管理改革的通知(发改外资 [2015] 2044 )) (the “NDRC Circular” and such post-issuance reporting, the “Post-Issuance Reporting to the NDRC”). Save for the Post-Issuance Reporting to the NDRC, the Company and its PRC counsel are not aware of any additional consent or approval required from any PRC Governmental Entity for the Company to enter into, execute and deliver the Transaction Documents and for the parties to consummate the transactions contemplated thereunder.

(3)           Assuming the accuracy of the representations and warranties of the applicable Investor set forth in SECTION 2.2, no consent, approval, authorization, order, registration or qualification of or with any Governmental Entity is required to be made or obtained by the Company for the execution, delivery and performance by the Company of the Transaction Documents and the consummation of the transactions contemplated thereby, except for (i) those that have been made or obtained prior to the date hereof, (ii) the Post-Issuance Reporting to the NDRC under SECTION 3.1(c), (iii) filings to be made following the date of this Agreement pursuant to securities laws and the rules and regulation of The NASDAQ Stock Market LLC (the “NASDAQ”) and the Main Board of the Stock Exchange of Hong Kong (the “Hong Kong Stock Exchange”), and (iv) the HKSE Approval described in SECTION 1.3(a)(viii).

(d)           Financial Statements. The financial statements of the Company included in the Company Disclosure Documents (the “Financial Statements”):

 7 

 

(1)           have been prepared from, and are in accordance with, the books and records of the Company and the Group Companies;

(2)           complied in all material respects, as of each of their dates of filing with the SEC, with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto;

(3)           have been prepared in all material respects in accordance with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis except as disclosed in such Financial Statements or the notes thereto; and

(4)           present fairly in all material respects the consolidated financial position of the Company and the Group Companies at the dates set forth therein and the consolidated results of operations and cash flows of the Company and the Group Companies for the periods stated therein,

(5)           subject to, in the case of the unaudited interim financial statements included in an exhibit to Form 6-K, (i) the absence of notes and year-end audit and closing adjustments, and (ii) the omission of consolidated statements of cash flows and footnote disclosures.

(e)           Reports. Since December 31, 2018, the Company has filed or furnished all reports, registrations, documents, filings, statements, schedules and submissions together with any required amendments thereto, that it was required to file with or furnish to the SEC (the foregoing, collectively, the “Company Reports”) and have paid all fees and assessments due and payable in connection therewith. As of their respective filing or furnishing dates, the Company Reports complied in all material respects with all statutes and applicable rules and regulations of the applicable Governmental Entities, as the case may be. As of the date of this Agreement, there are no outstanding comments from the SEC or any other Governmental Entity with respect to any Company Report. Each Company Report, including the documents incorporated therein by reference, when it was filed with or furnished to the SEC, did not, as of its date or if amended prior to the date of this Agreement, as of the date of such amendment, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made in it, in the light of the circumstances under which they were made, not misleading and complied in all material respects as to form with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company’s financial condition is, in all material respects, as described in the Company Reports, except for changes in the ordinary course of business.

(f)            Internal Controls and Procedures. The Company maintains a system of internal controls over financial reporting sufficient to provide reasonable assurance that (a) transactions are executed in accordance with management’s general or specific authorizations, (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures of the Company are being made only in accordance with appropriate authorizations of management, and (c) unauthorized acquisition, use or disposition of the Company’s assets that could have an adverse effect in any material respect on

 8 

 

the Company’s financial statements are prevented or timely detected. Since December 31, 2021, neither the Company nor, to the Company’s knowledge, the Company’s independent registered public accounting firm, has identified or been made aware of any “significant deficiency” or “material weakness” (each as defined by the Public Company Accounting Oversight Board) in the design or operation of the Company’s internal controls over financial reporting would reasonably be expected to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. The Company has no knowledge of any reason that its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes Oxley Act of 2002, without qualification, if and when next due. The Company has maintained “disclosure controls and procedures” as required by Rule 13a-15 under the Exchange Act in all material respects.

(g)           Title to Real and Personal Property. Except for any Permitted Liens, the Company and each other Group Company have good title or usage rights free and clear of any Liens to all the real and personal property that are material to their respective businesses, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, which are reflected in the Company’s consolidated balance sheet as of December 31, 2021 included in the Company’s Annual Report on Form 20-F for the period then ended, and all real and personal property that are material to their respective businesses acquired since such date, except such real and personal property as has been disposed of in the ordinary course of business and except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement, “Permitted Liens” means (i) Liens for taxes and other governmental charges and assessments arising in the ordinary course which are not yet due and payable, (ii) Liens of landlords and Liens of carriers, warehouse-men, mechanics and materialmen and other like Liens arising in the ordinary course of business for sums not yet due and payable, (iii) Liens under the Company’s existing loan facilities, (iv) non-exclusive licenses to Intellectual Property granted to third parties in the ordinary course of business and (v) other Liens or imperfections on property which are not material in amount or do not materially detract from the value of or materially impair the existing use of the property affected by such Lien or imperfection and except as would not individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All leases of real property and all other leases pursuant to which the Company or such Group Company, as lessee, leases real or personal property, which are material to their respective businesses, are valid and effective in all material respects, in accordance with their respective terms and there is not, under any such lease, any existing material default by the Company or such Group Company, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(h)           Tax. The Company and each Group Company have timely prepared and filed all tax returns required to have been filed by the Company with the appropriate Governmental Entities and timely paid all taxes shown thereon or otherwise owed by it (other than such taxes as are not yet due or are currently being contested in good faith and for which reserves have been provided in accordance with GAAP), except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company and each Group Company in respect of taxes for all fiscal periods are adequate in all material respects, and there are no material unpaid assessments against the Company or any other Group Company. All taxes and other assessments and levies that the

 9 

 

Company or any other Group Company is required to withhold or to collect for payment have been duly withheld and collected and paid to the proper Governmental Entity or third party when due, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There are no tax Liens or claims pending against the Company, any other Group Company or any of their assets or property, other than Permitted Liens. There are no tax audits or investigations pending, which if adversely determined would result in a Material Adverse Effect. The Company does not expect to be classified as a passive foreign investment company, as defined in Section 1297 of United States Internal Revenue Code of 1986, as amended, for the current taxable year or in future taxable years. The Company is, and has been since its inception, treated as a corporation for U.S. federal income tax purposes.

(i)            Absence of Certain Changes. Since December 31, 2021, the business and operations of the Company and the Group Companies have been conducted in the ordinary course of business consistent with past practice, there has not been any Material Adverse Effect and the Group Companies have not made any material change in any of their method of accounting or accounting policies.

(j)            Related Party Transaction. Other than the transactions disclosed in the Company Disclosure Schedule or in the Company Disclosure Documents, there are no material transactions or series of related transactions, agreements, arrangements or understandings, nor are there any currently proposed material transactions, or series of related transactions between the Company or any other Group Companies, on the one hand, and the Company, any current or former director or executive officer of the Company or any other Group Companies or any person who Beneficially Owns 5% or more of the Ordinary Shares (or any of such person’s immediate family members or Affiliates) (other than Group Companies), on the other hand.

(k)            Offering of Securities. Neither the Company nor any of its Affiliates nor any person acting on behalf of it or any of its Affiliates has taken or will take any action which would subject the offering, issuance, or sale of any of the Investor Notes to the registration requirements of the Securities Act.

(l)            Litigation and Other Proceedings. There is no pending or, to the knowledge of the Company, threatened, claim, action, suit, arbitration, mediation, demand, hearing, investigation or proceeding against the Company or any other Group Company or any director or officer thereof (in their capacity as such) that involves a claim that is or that, individually or in the aggregate, if adversely determined, would result in a Material Adverse Effect or that would reasonably be expected to have the effect of making illegal, enjoining or otherwise prohibiting or preventing the transactions contemplated by this Agreement. Neither the Company nor any other Group Company is subject to any material Governmental Order, nor are there any proceedings with respect to the foregoing pending, or to the knowledge of the Company, threatened.

(m)           Compliance with Laws and Other Matters; Permits. The Company and each Group Company have conducted their business in compliance in all material respects with all applicable laws and requirements of the NASDAQ and the Hong Kong Stock Exchange. The Company is not in material violation of any listing requirements of the NASDAQ and the Hong Kong Stock Exchange applicable to it and has no knowledge of any facts that would reasonably be expected to lead to delisting or suspension of its ADS from the NASDAQ or its Class A

 10 

 

Ordinary Shares from the Hong Kong Stock Exchange, in the foreseeable future. The Company and each Group Company have all material permits, licenses, authorizations, consents, orders and approvals (collectively, “Permits”), and have made all material filings, applications and registrations with, any Governmental Entity that are required in order to carry on their business as presently conducted, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All such Permits are in full force and effect and all such filings, applications and registrations are current, in each case, in all material respects.

(n)           No Delisting or Suspension of Trading. The Company has not received any notifications from any of the SEC, the NASDAQ, the Hong Kong Stock Exchange or any other Governmental Entity, nor does it have any knowledge of any facts, that would reasonably be expected to lead to delisting or suspension of its ADSs from the NASDAQ or its Class A Ordinary Shares from the Hong Kong Stock Exchange, in the foreseeable future.

(o)           Labor. Except as set out in the Company Disclosure Documents or the Company Disclosure Schedule: (i) there is no strike or material labor dispute pending or, to the knowledge of the Company, threatened against or affecting any of the Group Companies, (ii) each Group Company has been in compliance in all material respects with all applicable laws relating to labor, employment, and employment practices, (iii) each Benefit Plan has been established, maintained, administered, funded and operated in all material respects in compliance with its terms and applicable law. None of the Group Companies has any employee located in the United States, and none of the Group Companies has any current or contingent liability with respect to any Benefit Plan subject to the laws of the United States or on account of at any time being considered a single employer under Section 414 of the Code, with any other person.

(p)           Status of Securities. Upon issuance and delivery of the Investor Notes to the Investors in accordance with this Agreement, the Investor Notes (which, for the avoidance of doubt, will not carry any voting rights and will not be entitled to any pre-emptive rights) will rank pari passu in right of payment with all other present and future senior unsecured indebtedness (including, for the avoidance of doubt, the 2025 Convertible Notes and the 2029 Convertible Notes) of the Company and amongst themselves and will be convertible at the option of the holder thereof into Class A Ordinary Shares (or such Class A Ordinary Shares in the form of ADS (such ADS, the “New ADS”)) in accordance with the Indenture (the “New Shares”). The New Shares, when issued and delivered upon conversion of the Investor Notes in accordance with the Indenture, will be validly issued, fully paid and non-assessable (which term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue thereof), and shall be free and clear of Liens (other than those created by such Investor), except for restrictions on transfer imposed by applicable securities laws and the Articles of Associations. The Company has, or will have as of the Closing Date, sufficient authorized share capital to satisfy the issue of such number of Class A Ordinary Shares or new ADS as would be required to be issued upon conversion of all of the Notes at the initial conversion price in accordance with the terms of the Indenture.

(q)           Investment Company. Neither the Company nor any of the Group Companies is an “investment company” as defined under the Investment Company Act of 1940,

 11 

 

as amended, and neither the Company nor any of the Group Companies sponsors any person that is such an investment company.

(r)            Directed Selling Efforts. Neither the Company nor its affiliates (as defined in Rule 405 under the Securities Act) nor any persons acting on behalf of any of them has engaged in any “directed selling efforts” (as defined in Regulation S) with respect to the Notes, the New ADS or the New Shares.

(s)           Foreign Issuer. The Company is a “foreign issuer” as defined in Regulation S.

(t)            Compliance with Anti-Bribery, Anti-Money Laundering and Sanctions Laws. Neither the Company nor any other Group Company, nor any of their respective directors, officers, managers, and employees (in their respective capacity as such), or to the knowledge of the Company, any agent, independent contractors, representatives, or other person acting for or on behalf of the Company or any other Group Company (including their respective directors, officers, managers, and employees, in their respective capacity as such) (i) is aware of or has taken any action in connection with any Group Company, directly or indirectly, that would result in a violation of the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1 et seq., as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed a violation of the Bribery Act 2010 of the United Kingdom, PRC Criminal Law, the PRC Anti-Unfair Competition Law, the Provisional Regulations regarding Prohibition of Commercial Bribery and all other applicable laws, regulations and judicial interpretations in respect of anti-corruption in the PRC, in each case to the extent applicable, or any other applicable anti-bribery or anti-corruption laws (“Anti-Bribery Laws”), (ii) is aware of, or has, in violation of any applicable Anti-Bribery Laws, made or taken an intentional act in connection with any Group Company in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any government or regulatory official or employee, including any directors, officers and employees of any wholly government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office, (iii) has made, offered, promised, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit, (iv) has violated or operated in material noncompliance with any applicable anti-money laundering law or anti-terrorism law, or (v) is currently subject to any United States sanctions administered by the Office of Foreign Assets Control of the United States Department of the Treasury, the U.S. Department of Commerce, or the U.S. Department of State, or any sanctions imposed by the United Nations Security Council, the European Union, His Majesty’s Treasury, the Hong Kong Monetary Authority, PRC, or any other relevant sanctions authorities (“Sanctions”), (vi) is transacting business, located or residing in, incorporated under the laws of, or owned 50% or more or controlled by, or acting on behalf of, a person located or residing in or organized under the laws of a country or territory that is, or whose government is, the target of comprehensive Sanctions (currently, the Crimea, Donetsk, Kherson, Luhansk, and Zaporizhzhia regions of Ukraine, Cuba, Iran, North Korea, and Syria), or (vii) is in violation of Sanctions. The Company and each Group Company have, to the extent required by applicable law and regulation, instituted and maintain policies and procedures designed to promote and reasonably ensure, and which are reasonably

 12 

 

expected to continue to reasonably ensure, continued compliance with applicable Anti-Bribery Laws and laws and regulations relating to anti-money laundering, terrorist financing, and to the fullest extent permitted by applicable law, Sanctions.

(u)           Environmental Liability. Except as has not had and would not be reasonably expected to have a Material Adverse Effect, the Company and each Group Company are in compliance with all, and have no material liability (contingent or otherwise) with respect to any manufacture, distribution, disposal or release of, contamination by, or exposure of any person to, any Hazardous Materials under, applicable Environmental Laws. For purposes of this Agreement, “Environmental Law” means any law, regulation, order, decree, common law or agency requirement relating to the protection of the environment or human health and safety.

(v)           Intellectual Property.

(1)           The Company and the Group Companies own all right, title, and interest in and to, free and clear of all Liens, except for Permitted Liens, or have a valid and enforceable license to use all material Intellectual Property used in or necessary to carry on their business as currently conducted, and such Intellectual Property is valid, subsisting and enforceable except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and is not subject to any material outstanding order, judgment, decree or agreement adversely affecting the Company’s or the Group Companies’ use of, or rights to, such Intellectual Property. The Company and the Group Companies have sufficient rights to use all Intellectual Property used in or necessary for their business as presently conducted, all of which rights shall survive unchanged following the consummation of the transactions contemplated by this Agreement except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(2)           There have been no claims made and, to the knowledge of the Company, no pending claims made asserting the invalidity, misuse or unenforceability of any Intellectual Property owned or used by the Company or any other Group Company, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any other Group Company has received any notice of infringement or misappropriation of, or any conflict with, the rights of others with respect to any Intellectual Property except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The conduct of the business of the Company and any other Group Company has not infringed, misappropriated or conflict with any intellectual property rights of any third party except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, no third party has materially infringed, misappropriated or otherwise violated the Intellectual Property rights of the Company or the Group Companies. The Company and the Group Companies have taken reasonable measures to protect the material Intellectual Property owned by or licensed to the Company or any of the Group Companies.

(3)           The Group Companies have used commercially reasonable efforts to protect the confidentiality, integrity, security, and continuity of the Company Systems in all

 13 

 

material respects. The Company Systems are, in all material respects, sufficient for the immediate and currently anticipated future needs of the businesses of the Group Companies. There have been no unauthorized intrusions, failures, breakdowns or substandard performance of any Company Systems, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Intellectual Property” shall mean (A) all trademarks, service marks, brand names, trade names, logos, designs, slogans, taglines, domain names, rights to social media accounts, the registrations in any jurisdiction of, and applications in any jurisdiction to register, the foregoing together with all good-will associated therewith; (B) patents, applications for patents, and any renewals, extensions or reissues thereof, in any jurisdiction; (C) nonpublic information, know-how, trade secrets, technology and inventions (whether patentable or not) and confidential information; (D) copyrights, works of authorship, registrations or applications for registration of copyrights in any jurisdiction, and any renewals or extensions thereof, mask works and copyrightable works; (E) software (including source code and object code), data, databases, and documentation thereof; and (F) other intellectual property, industrial property and proprietary rights.

(w)           Brokers and Finders. Other than the Company’s engagement of J.P. Morgan Securities (Asia Pacific) Limited (“J.P. Morgan”) as financial advisor to the Company in connection with the sale of the Notes, neither the Company nor any other Group Company nor any of their respective officers, directors or employees (acting in their respective capacity as such) has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees, and no broker or finder has acted directly or indirectly for the Company or any Group Company in connection with the Transaction Documents or the transactions contemplated hereby and thereby.

(x)            VIE Agreements. Each of the VIE Agreements has been duly authorized, executed and delivered by the parties thereto, and constitutes valid and binding obligations of the parties thereto, enforceable against such parties in accordance with its terms, subject to the Bankruptcy and Equity Exception, and there is no enforceable agreement or undertaking to rescind, amend or change the nature of such captive structure or material terms of the VIE Agreements. The VIE Agreements do not violate the laws and regulations of PRC which are effective as of the date of this Agreement, or the articles of association of the parties of such VIE Agreements. The VIE Agreements are adequate to enable the financial statements of each Group Company that is a party to a VIE Agreement to be consolidated with those of the Company in accordance with GAAP.

(y)           Indebtedness. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, none of the Group Companies is in breach of, default, event of default or violation under any Debt Agreement or has requested or been granted a waiver for any such breach, default or violation under such Debt Agreement. None of the parties to any Debt Agreement is entitled to declare any indebtedness under any Debt Agreement due and payable prior to its specified maturity as a result of an event of default (however described) under such Debt Agreement, which declaration would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No event (which could not be cured under the terms of the relevant Debt Agreement) has occurred that with notice or lapse

 14 

 

of time, or both, would constitute an event of default (however described) under any Debt Agreement which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(z)            No Undisclosed Liabilities. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any of the Group Companies has any liabilities or obligations of a type required to be reflected on a balance sheet in accordance with GAAP, other than (i) liabilities or obligations disclosed and provided for in the Financial Statements or in the notes thereto, (ii) liabilities or obligations that have been incurred by the Company or the Group Companies since December 31, 2021 in the ordinary course of business or (iii) liabilities or obligations arising under or in connection with the transactions contemplated by the Transaction Documents.

(aa)          Material Contracts. The Material Customer Contracts are in full force and effect and represent the legal, valid and binding obligations of the applicable Group Company party thereto and to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto. Neither the Group Company party thereto, nor, to the knowledge of the Company, any of the other parties thereto, is in material breach of, material default or material violation under any Material Customer Contract. To the knowledge of the Company, no event has occurred that with notice or lapse of time, or both, would constitute a material breach, material default or material violation under any Material Customer Contract. None of the Group Companies has received any written claim or notice of any material breach, material default or material violation under any Material Customer Contract. Other than as set out in the Company Disclosure Schedule, to the Company’s knowledge, none of the other parties to any of the Material Customer Contracts or the customer to whom any Group Company provides services under such Material Customer Contract, has notified the Company or any other Group Company in writing that it has the intention to terminate, suspend or not renew or discontinue, or materially change the existing terms with respect to, its business relationship with the Group Companies in manner which, based on the reasonable determination of the Company, would materially and adversely impact the financial condition and results of operations of the Group Companies, taken as a whole.

(bb)         No Other Agreements. No Group Company has entered into any side letter or similar agreement with any Investor in connection with such Investor’s purchase of its Investor Notes other than this Agreement, the Indenture, the Global Note and all other documents or written agreements entered into or delivered by all the parties hereto (if any) in connection with the transactions contemplated hereby or thereby. The commercial terms of all the Investor Notes to be issued hereunder to the Investors will be substantially the same.

Section 2.2.         Representations and Warranties of each Investor. Each Investor, severally and not jointly, hereby represents and warrants with respect to itself, as of the date hereof and as of the Closing Date with respect to such Investor (except to the extent made only as of a specified date, in which case as of such date), to the Company that:

(a)            Incorporation, Organization and Authority. Such Investor has been duly incorporate or organized, as the case may be, and is validly existing and in good standing (or the jurisdictional equivalent) under the laws of its jurisdiction of incorporation or organization, is duly

 15 

 

licensed or qualified to do business and is in good standing (or the jurisdictional equivalent) in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such license or qualification, and has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged.

(b)           Authorization.

(1)           Such Investor has the corporate power and authority to enter into, execute and deliver each of the Transaction Documents to which it is a named party and to carry out and perform its obligations thereunder. The execution, delivery and performance of the Transaction Documents to which it is a named party by such Investor and the consummation of the transactions contemplated thereby have been duly authorized by all requisite actions on the part of such Investor. The Transaction Documents to which it is a named party constitute valid and legally binding obligations of such Investor, enforceable against such Investor in accordance with their respective terms, subject to the Bankruptcy and Equity Exception.

(2)            Neither the execution, delivery and performance by such Investor of any of the Transaction Documents to which it is a named party, nor the consummation of the transactions contemplated thereby will (i) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination, modification or acceleration of, or result in the creation or imposition of, any Lien upon any property, right or asset of such Investor pursuant to any agreement, contract or instrument to which such Investor is a named party or by which any such property, right, or asset is bound, (ii) violate any law, statute, rule or regulation or any judgment, ruling, order, writ, injunction or decree applicable to such Investor or any of its properties, licenses or assets, or (iii) violate, conflict with or result in the breach of any provision of the organizational documents of such Investor, except, in the case of clause (i) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Investor’s capability to consummate the transactions and to perform its obligations contemplated under the Transaction Documents.

(3)            No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Entity is required by such Investor for the execution, delivery and performance by such Investor of the Transaction Documents to which it is a named party and the consummation of the transactions contemplated thereby.

(4)            Purchase for Investment. Such Investor (A) is acquiring the Investor Notes and the underlying New Shares for its own account solely for investment with no present intention or plan to distribute any of the Investor Notes or New Shares to any person nor with a view to or for sale in connection with any distribution thereof, in each case in violation of the Securities Act, and (B) will not sell or otherwise dispose of any of the Investor Notes or New Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws. Without limiting any of the foregoing, neither such Investor nor any of its Affiliates has

 16 

 

taken, and such Investor will not, and will cause its Affiliates not to, take any action that would cause the securities to be purchased hereunder to be subject to the registration requirements of the Securities Act. Such Investor is not purchasing the Investor Notes and the underlying New Shares with a view to distribution, or proposing to offer or sell any of such Investor Notes or underlying New Shares in connection with their distribution, or is participating, or has a direct or indirect participation, in any such undertaking or in the direct or indirect underwriting of any such undertaking, and the Investor Notes and underlying New Shares do not constitute the whole or a part of an unsold allotment to or subscription by a dealer, as a participant in the distribution of such Investor Notes or the underlying New Shares by the Company or by or through an underwriter.

(c)            Exemption from Registration; Restricted Securities. Such Investor acknowledges that the Investor Notes and the New Shares have not been registered under the Securities Act or the securities law of any state of the United States or other jurisdiction and may not be offered, resold, pledged or otherwise transferred directly or indirectly in the United States or to or for the account or benefit of any “U.S. person” as that term is defined under Regulation S under the Securities Act except pursuant to an effective registration statement or an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, or in any other jurisdiction or for the account or benefit of any persons in any other jurisdiction except pursuant to an exemption from, or in a transaction not subject to, any applicable laws of such other jurisdiction, and any certificate(s) representing the Investor Notes or the New Shares shall bear a legend substantially to such effect.

(d)           Financial Capability. Such Investor will have immediately available funds necessary to consummate the Closing with respect to such Investor, as of the Closing Date with respect to such Investor, on the terms and conditions contemplated by this Agreement.

(e)           Sophisticated Investor. Such Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in shares representing an investment decision like that involved in the purchase of its Investor Notes, including investments in securities issued by the Company, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to evaluate the merits and risks of a purchase of its Investor Notes, and can bear the economic risk and complete loss of its investment in its Investor Notes. Such Investor has independently made its own analysis and decision to enter into the transactions contemplated hereby. Such Investor hereby acknowledges and agrees that (i) J.P. Morgan is acting solely as the Company’s placement agent in connection with the transactions contemplated hereby and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for such Investor, the Company or any other person or entity in connection with the transactions contemplated hereby, (ii) J.P. Morgan has not made, nor will it make, any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the transactions contemplated hereby, (iii) J.P. Morgan will not have any responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the transactions contemplated hereby or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the

 17 

 

Company or transactions contemplated hereby, and (iv) J.P. Morgan shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by such Investor, the Company or any other person or entity), whether in contract, tort or otherwise, to such Investor, or to any person claiming through such Investor, in respect of the transactions contemplated hereby. Such Investor understands and agrees that it has elected not to be provided with information with respect to an equity private placement (“EPP”) transaction involving the Company’s Subsidiary, DigitalLand Holdings Limited (“DigitalLand”), which information includes the fact that an EPP transaction is being evaluated and other information concerning DigitalLand, and may include forward-looking information (the “EPP Information”), and that its evaluation of the transactions contemplated hereby has been limited to information provided concerning the Company only, and that other investors participating in the purchase may receive such EPP Information, and that such Investor consents to this restriction on information and such Investor waives its right to receive any such EPP Information from the Company or J.P. Morgan, and agrees that it has moved forward with its evaluation of the transactions contemplated hereby without such EPP Information.

(f)            Existing Ownership. Except as disclosed in writing to the Company prior to the date of this Agreement, such Investor does not legally or Beneficially Own or control, directly or indirectly, any shares, convertible debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any shares or convertible debt in the Company, or have any agreement, understanding or arrangement to acquire any of the foregoing, except with respect to (i) such Investor Notes as to be purchased by such Investor pursuant to the transactions contemplated herein, (ii) any other agreement such Investor or any of its Affiliate entered into with the Company on or prior to the date hereof, or (iii) any such interest disclosed to the Company in writing on or prior to the date hereof.

(g)           Reliance on Exemptions.  Such Investor understands that its Investor Notes are being offered and sold to it in reliance on specific exemptions from the registration requirements of U.S. federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Investor’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of such Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire its Investor Notes. Such Investor is not a “U.S. person” as defined in Rule 902 of Regulation S of the Securities Act. Such Investor has been advised and acknowledges that in issuing its Investor Notes to it pursuant the terms hereto, the Company is relying upon the exemption from registration provided by Regulation S under the Securities Act. Such Investor further acknowledges and agrees that, absent an effective registration under the Securities Act, its Investor Notes may only be offered, sold or otherwise transferred (x) to the Company, (y) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act or (z) pursuant to an exemption from registration under the Securities Act.

(h)           Brokers and Finders. Neither such Investor nor any of its respective officers, directors or employees (acting in their respective capacity as such) has employed any broker or finder or incurred any liability for any financial advisory fees, brokerage fees, commissions or finder’s fees in connection with the transactions contemplated hereby.

 18 

 

(i)             Compliance with Anti-Bribery, Anti-Money Laundering and Sanctions Laws. Such Investor, including its directors, officers, managers and employees (in their respective capacity as such), and to the knowledge of such Investor, any agent, independent contractors, representatives, or other person acting on behalf of such Investor, (i) has not violated or operated in material noncompliance with any applicable anti-money laundering law or anti-terrorism law, and (ii) is not currently subject to or the target of any Sanctions. Such Investor has, to the extent required by applicable law and regulation, instituted and maintains policies and procedures designed to promote and reasonably ensure, and which are reasonably expected to continue to reasonably ensure, continued compliance with applicable Anti-Bribery Laws and laws and regulations relating to anti-money laundering and terrorist financing, and to the extent permitted by applicable law, Sanctions, and no funds given to the Company or any Group Company pursuant to the transactions anticipated by this Agreement shall be derived from violations, or provided in violation, of any applicable Anti-Bribery Laws or laws and regulations relating to anti-money laundering, terrorist financing, or applicable Sanctions.

Article III

 

Covenants

Section 3.1.         Filings; Other Actions.

(a)            Each party hereto will cooperate and consult with each other and use commercially reasonable efforts to prepare and file all necessary documentation, to effect all necessary applications, notices, petitions, filings, and other documents, and to obtain all necessary permits, consents, orders, approvals, and authorizations of, or any exemption by, all third parties and Governmental Entities, and expiration or termination of any applicable waiting periods, necessary or advisable to consummate the transactions contemplated by the Transaction Documents and to perform its covenants contemplated by the Transaction Documents. Each party hereto shall execute and deliver both before and after the Closing such further certificates, agreements, and other documents and take such other actions as any other party may reasonably request to consummate or implement such transactions or to evidence such events or matters. Each party hereto will have the right to review in advance, and to the extent practicable, each will consult with the other, in each case subject to applicable laws relating to the exchange of information and confidential information related to such party, all the information (other than personal or sensitive information) relating to such other party, and any of their respective Affiliates, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by the Transaction Documents; provided that, notwithstanding anything in this Agreement to the contrary, each party hereto acknowledges that a copy of the form of this Agreement and the other Transaction Documents to which it is a party may be filed with the SEC and this Agreement and the other Transaction Documents to which it is a party may be described in a filing made with the SEC, in each case pursuant to applicable requirements of law, without any prior notice to or consultation with any other party hereto. In exercising the foregoing right, each of the parties hereto agrees to act reasonably and as promptly as practicable. Each party hereto agrees to keep the other party apprised of the status of matters relating to completion of the transactions contemplated hereby. Each party shall promptly furnish

 19 

 

each other to the extent permitted by applicable laws with copies of written communications received by them or their Affiliates from, or delivered by any of the foregoing to, any Governmental Entity in respect of the transactions contemplated by this Agreement or any other Transaction Document. Notwithstanding anything in this Agreement to the contrary, no party shall be required to provide any materials to any other party that it deems proprietary, privileged or confidential nor shall either be required to make any commitments to any Governmental Entity in connection therewith.

(b)           Each Investor, with respect to itself only, and the Company agree that upon reasonable request, such Investor and the Company shall furnish each other with all information concerning itself, its subsidiaries (or Group Companies, in the case of the Company), Affiliates, directors, officers, partners, and shareholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice, or application made by or on behalf of such other party or any of its subsidiaries (or Group Companies, in the case of the Company) to any Governmental Entity in connection with this Agreement. Notwithstanding anything herein to the contrary, no party shall be required to furnish any other party with any (1) sensitive personal biographical or personal financial information of any of the directors, officers, employees, managers or partners of such party or any of its Affiliates, (2) proprietary, privileged and non-public information related to the organizational terms of, or investors in, it or its Affiliates, or (3) any information that it deems proprietary, privileged or confidential.

(c)           The Company shall (through a PRC Subsidiary) report to the NDRC on the requisite information and documents within ten (10) Business Days in the PRC after the date of each issuance of the Investor Notes hereunder in accordance with the NDRC Circular.

(d)           The Company will comply with all requirements of NASDAQ and the Hong Kong Stock Exchange with respect to the issuance of the Notes (including the issuance of Class A Ordinary Shares or ADSs upon conversion thereof), including the filing or making of any additional listing notice or requirements with respect to the issuance of Class A Ordinary Shares or ADSs upon conversion of the Notes.

(e)           Such Investor agrees that it, upon the conversion of any Investor Notes, it shall comply with the provisions of the Deposit Agreement, dated as of November 1, 2016, among the Company, JPMorgan Chase Bank, N.A., as depositary (the “Depositary”), and holders of the ADSs, and the provisions of the First Supplemental and Restated Letter Agreement, dated as of March 21, 2021, between the Company and the Depositary. Such Investor agrees that it shall not deposit any underlying New Shares for the receipt of American depositary receipts until and unless such Investor is able to sell all of the ADSs issuable on the deposit of such New Shares in a single transaction pursuant to (i) an effective registration statement under the Securities Act or (ii) Rule 144 promulgated under the Securities Act, and any purchaser of such ADSs and any underlying New Shares represented thereby will not receive “restricted securities”.

Section 3.2.         Expenses. Each of the parties hereto will bear and pay all costs and expenses incurred by it or on its behalf in connection with this Agreement and the transactions contemplated under this Agreement. For the avoidance of doubt, the Investors will pay all of their own costs and expenses, including the fees and expenses of their counsels (legal or otherwise) and

 20 

 

securities transfer taxes on the resale of any of the Notes, Class A Ordinary Shares (or Class A Ordinary Shares in the form of ADSs) by them.

Section 3.3.         Confidentiality. Each party to this Agreement will hold, and will cause its respective subsidiaries (or Group Companies, in the case of the Company) and their directors, officers, employees, agents, consultants, and advisors to hold, in strict confidence, unless disclosure to a Governmental Entity is necessary in connection with any necessary regulatory approval or unless compelled to disclose by judicial or administrative process or, in the written opinion of its counsel, by other requirement of law or the applicable requirements of any Governmental Entity, all nonpublic records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other parties hereto furnished to it by such other parties or their respective representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) previously known by such party on a non-confidential basis, (2) in the public domain through no fault of such party, or (3) later lawfully acquired from other sources by the party to which it was furnished), and none of the parties hereto shall release or disclose such Information to any other person, except its and its Affiliates’ respective directors, officers, employees, partners, shareholders, auditors, attorneys, financial advisors, other consultants, and advisors and, in the case of the Investors, any potential or actual financing sources or transferee of the Subject Securities held by them in a transfer permitted under the terms of this Agreement, in each case provided that each such recipient shall either be subject to professional obligations to keep such information confidential or confidentiality obligations that are as restrictive as this SECTION 3.3 and the relevant disclosing party shall be liable for any breach of confidentiality obligations by any of such recipient. If a party is required to disclose any Information to a Governmental Entity in accordance with this SECTION 3.3 (each, a “Compelled Disclosure”), subject to SECTION 3.1, the disclosing party shall, to the extent practical and legally permissible, notify the other parties prior to making any such disclosure by providing the other parties with the text of the disclosure requirement and draft disclosure at least 48 hours prior to making any such disclosure, and will narrow the draft disclosure to the extent the other parties reasonably requests. Notwithstanding any other provision herein to the contrary, no party hereto (the “Required Disclosing Party”) shall be required to give notice to any other party hereto, and shall not be prohibited from disclosing Information, to the extent such disclosure requirements (x) is a Compelled Disclosure, (y) do not specifically reference any other party hereto, any Transaction Document, or any of the transactions contemplated under the Transaction Documents, and (z) occur in the course of an ordinary course audit, examination or inspection of the business or operations of the Required Disclosing Party.

Section 3.4.         Conduct of the Business. Prior to the earlier of the Closing Date with respect to the relevant Investor and the termination of this Agreement pursuant to SECTION 5.1, the Company shall, and shall cause each Group Company to, (i) conduct its business in the ordinary course consistent with past practice, including customary financing arrangements and facilities, (ii) use commercially reasonable efforts to preserve intact its current business organizations and its rights and permits issued by Governmental Entities, keep available the services of its current officers and key employees and preserve its relationships with customers, suppliers, Governmental Entities and others having business dealings with it to the end that its goodwill and ongoing businesses shall be unimpaired, and (iii) not take any action that would reasonably be expected to materially adversely affect or materially delay the consummation of the transactions contemplated by the Transaction Documents.

 21 

 

Section 3.5.         Commercially Reasonable Efforts. Each Investor and the Company will use their respective commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement with respect to such Investor, including using commercially reasonable efforts to accomplish the following: (a)  all acts reasonably necessary to cause the conditions to Closing with respect to such Investor to be satisfied; (b) the obtaining of all necessary actions or no actions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations, filings, reports and the taking of all reasonable steps necessary to obtain an approval or waiver from, or to avoid an action or proceeding by any Governmental Entity; (c) the obtaining of all necessary consents, approvals or waivers from third parties; and (d) executing and delivering any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.

Section 3.6.         Use of Proceeds. The Company shall use the proceeds from the issuance and sale of the Notes for (a) the development and acquisition of new data centers, and (b) general corporate purposes and working capital needs.

Article IV

 

Additional Agreements

Section 4.1.         Compliance with Laws.

(a)            Each Investor acknowledges that it is aware of, and that will advise its representatives of, the restrictions imposed by applicable United States and other applicable jurisdictions’ securities laws with respect to trading in securities while in possession of material non-public information relating to the issuer of such securities and on communication of such information when it is reasonably foreseeable that the recipient of such information is likely to trade such securities in reliance on such information.

(b)           The Company shall not, and shall not permit any Group Company or any of their respective directors, officers, managers, employees, agents, independent contractors, representatives, or other person acting for or on behalf of the foregoing persons to offer, pay, promise to pay, or authorize the payment of any money or the giving of anything of value, directly or indirectly, to any person in violation of all applicable Anti-Bribery Laws. The Company further represents that it shall and shall cause all Group Companies and their respective directors, officers, managers, employees, agents, independent contractors, representatives, or other person acting for or on behalf of the foregoing persons to, (i) cease all of its or their respective activities, as well as remediate any actions taken by them in violation of any applicable Anti-Bribery Laws and (ii) maintain systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with all applicable Anti-Bribery Laws.

 22 

 

Section 4.2.         Legend.

 

(a)            Each Investor agrees that all certificates or other instruments representing the securities subject to this Agreement (if any such certificates are issued) will bear a legend in the applicable form set forth in the Indenture.

(b)           Upon request of such Investor, upon receipt by the Company of an opinion of counsel and other customary representations and other documentation from such Investor, in each case, reasonably satisfactory to the Company to the effect that such legend is no longer required under the Securities Act or applicable state laws, as the case may be, the Company shall promptly cause the legend to be removed from any certificate or any other instrument for any securities.

Section 4.3.         Indemnity.

(a)           The Company agrees to, from and after the Closing Date with respect to an Investor and subject to the limitations set forth in this SECTION 4.3, indemnify such Investor and its Affiliates, and its and their respective directors and officers (in such capacity, an “Investor Indemnified Party”) and hold each Investor Indemnified Party harmless to the fullest extent permitted by applicable law against any actions, causes of action, suits, claims, losses, taxes, costs, penalties, fees, liabilities and damages, and expenses in connection therewith, and including reasonable attorneys’ fees and disbursements (the “Losses”) actually suffered, incurred or paid by such Investor Indemnified Party, directly or indirectly, arising from: (i) any breach of any representation or warranty made by the Company in SECTION 2.1 (it being agreed that, solely for the purpose of determining the amount of Losses of an Investor Indemnified Party (but not for purposes of determining whether any such breach has actually occurred), the representations and warranties made by the Company in SECTION 2.1 that are qualified by “materiality” or “Material Adverse Effect” qualifications or other terms of similar import or effect shall be deemed to be made without such qualifications); or (ii) any breach of any covenant or agreement by the Company contained in this Agreement. Other than with respect to fraud, in no event shall the Company be liable for or have an obligation to indemnify or hold harmless any Investor Indemnified Party for Losses in connection with the representations and warranties made by the Company in SECTION 2.1 in excess of 100% of the Investor Purchase Price paid to the Company by such Investor pursuant to this Agreement, and the Company shall not be liable to any Investor Indemnified Party for any Losses unless the aggregate amount of all Losses incurred by such Investor Indemnified Party exceeds US$1,000,000 paid to the Company by such Investor pursuant to this Agreement (the “Basket”), in which case the Company shall be liable for all such Losses in excess of the Basket. The Company shall not be liable to any Investor Indemnified Party for any Losses arising under this SECTION 4.3 relating to an individual claim resulting in Losses in the amount of US$200,000 or less (a “De Minimis Claim”), regardless of whether or not aggregate Losses have exceeded the Basket; nor shall the amount of any such De Minimis Claims be taken into account in determining whether the Basket has been reached. Notwithstanding anything to the contrary, other than with respect to fraud, in no event shall the aggregate liability of the Company to the Investor Indemnified Parties of an Investor for any and all Losses in connection with this Agreement exceed the Investor Purchase Price paid to the Company by such Investor pursuant to this Agreement.

(b)           Each Investor, severally and not jointly, agrees to indemnify each of the Company and its Affiliates and each of their respective directors, officers, employees and

 23 

 

shareholders, owners (collectively, the “Company Indemnified Parties”) and hold each of Company Indemnified Parties harmless against any and all Losses suffered, incurred or paid by the Company Indemnified Parties, arising from, as a result of or in connection with: (i) any breach of any representation or warranty made by such Investor in SECTION 2.2 or (ii) any breach of any covenant or agreement by such Investor contained in this Agreement. Other than with respect to fraud, in no event shall such Investor be liable for or have an obligation to indemnify or hold harmless any Company Indemnified Party for Losses in excess of the Investor Purchase Price paid to the Company by such Investor pursuant to this Agreement.

(c)           A party entitled to indemnification hereunder (an “Indemnified Party”) shall give written notice to the party indemnifying it (the “Indemnifying Party”) of any claim with respect to which it seeks indemnification promptly after the discovery by such Indemnified Party of any matters giving rise to a claim for indemnification; provided that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this SECTION 4.3 unless and to the extent that the Indemnifying Party shall have been actually prejudiced by the failure of such Indemnified Party to so notify such party. No claim for indemnification may be asserted against any Indemnifying Party for breach of any representation, warranty, covenant or agreement contained herein unless written notice of such claim is received by such Indemnifying Party on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or proceeding is based ceases to survive as set forth in SECTION 7.1. Such notice shall describe in reasonable detail such claim. In case any such action, suit, claim or proceeding is brought against an Indemnified Party, the Indemnified Party shall be entitled to hire, at the cost and expense of the Indemnifying Party, counsel and conduct the defense thereof; provided, however, that the Indemnifying Party shall only be liable for the legal fees and expenses of one law firm for the Indemnified Parties, taken together with regard to any single action or group of related actions, upon agreement by the Indemnified Parties and the Indemnifying Party. If the Indemnifying Party assumes the defense of any claim, the Indemnified Parties shall thereafter deliver to the Indemnifying Party copies of all notices and documents (including court papers) received by the Indemnified Parties relating to the claim (provided that the Indemnified Parties may redact any sensitive information if necessary to the extent such redaction would not prejudice the Indemnifying Party’s assumption and defense of such claim and so long as SECTION 3.3 is complied with, other than in the case of a Compelled Disclosure where such redaction is not permissible by applicable law) and the Indemnified Parties shall cooperate in the defense or prosecution of such claim. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not be liable for any settlement of any action, suit, claim or proceeding effected without its written consent; provided, however, that the Indemnifying Party shall not unreasonably withhold, delay or condition its consent. The Indemnifying Party further agrees that it will not, without any Indemnified Party’s prior written consent (which shall not be unreasonably withheld or delayed), settle or compromise any claim or consent to entry of any judgment in respect thereof in any pending or threatened action, suit, claim or proceeding in respect of which indemnification has been sought hereunder unless such settlement or compromise includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, claim or proceeding.

 24 

 

(d)           In calculating the amount of any Losses hereunder, there shall be subtracted the amount of any insurance proceeds and third-party payments received by the Indemnified Parties with respect to such Losses, if any, net of any actual costs or expenses incurred in connection with securing or obtaining such proceeds or payments. In no event shall any Indemnified Party be entitled to recover or make a claim for any amounts in respect of, and in no event shall “Losses” be deemed to include (i) any diminution in value of the securities of the Company or (ii) any indirect, punitive or consequential damages (including lost profits), which in each case of the foregoing clauses (i) and (ii), are not the reasonably foreseeable result or consequence of the underlying breach by the relevant breaching party hereto.

(e)            Except in the case of fraud, the indemnification obligations of the parties hereto provided in this SECTION 4.3 shall be the sole and exclusive post-Closing remedy available for any Losses under this Agreement, provided that the foregoing shall not affect the right of any party hereto to seek specific performance in accordance with SECTION 7.14.

(f)            Any indemnification payments pursuant to this SECTION 4.3 shall be treated as an adjustment to the investment amount for the relevant Investor Notes for U.S. federal income and applicable state and local tax purposes, unless a different treatment is required by applicable law.

Article V

 

Termination

Section 5.1.         Termination. As between the Company on the one hand and any Investor on the other hand, this Agreement may be terminated prior to the Closing of such Investor:

(a)           by mutual written consent of the Company and such Investor;

(b)           by the Company, upon written notice to such Investor, in the event that any of the conditions of Closing set forth in SECTION 1.3(b) are not satisfied, or waived by the Company, as of 11:59 p.m. Hong Kong time on the Long Stop Date; provided, however, that the right to terminate this Agreement pursuant to this SECTION 5.1(b) shall not be available to the Company if its failure to fulfill any obligation under this Agreement shall have been the primary cause of, or shall have resulted in, the failure of the Closing with respect to such Investor to occur on or prior to such date;

(c)           by such Investor, with respect to its own rights and obligations, upon written notice to the Company, in the event that the conditions of Closing set forth in SECTION 1.3(a) are not satisfied, or waived by such Investor, as of 11:59 p.m. Hong Kong time on the Long Stop Date; provided, however, that the right to terminate this Agreement pursuant to this SECTION 5.1(c) shall not be available to such Investor if its failure to fulfill any obligation under this Agreement shall have been the primary cause of, or shall have resulted in, the failure of the Closing with respect to such Investor to occur on or prior to such date (it being understood that each of the remaining Investors may, at their election, waive any such condition, deem it satisfied, or otherwise proceed to consummate the Closing); or

 25 

 

(d)           by the Company, upon written notice to such Investor, or by such Investor, upon written notice to the Company, in the event that any Governmental Entity shall have issued any order, decree or injunction or taken any other action restraining, enjoining or prohibiting any of the transactions contemplated by this Agreement, and such order, decree, injunction or other action shall have become final and non-appealable prior to the Closing Date; provided, however, that the right to terminate this Agreement pursuant to this SECTION 5.1(d) shall not be available to any party hereto that has breached in any material respect any provision of this Agreement in any manner that was the primary cause of the issuance by such Governmental Entity of any such order, decree or injunction or other action.

Section 5.2.         Effects of Termination. In the event of any termination of this Agreement as provided in SECTION 5.1, this Agreement (other than SECTION 3.2, SECTION 3.3, SECTION 4.3, this SECTION 5.2, ARTICLE VII and all applicable defined terms, which shall remain in full force and effect) shall forthwith become wholly void and of no further force and effect with respect to the applicable parties and the applicable parties shall be released from all future obligations hereunder; provided that nothing herein shall relieve any such party from liability for willful breach of this Agreement or liability for any breach of this Agreement occurring prior to such termination.

Article VI

 

[INTENTIONALLY OMITTED]

Article VII

 

Miscellaneous

Section 7.1.         Survival. Each of the representations and warranties set forth in this Agreement shall survive the Closing under this Agreement but only for a period of twelve (12) months following the Closing Date (or until final resolution of any claim or action arising from the breach of any such representation and warranty, if notice of such breach was provided prior to the end of such period) and thereafter shall expire and have no further force and effect, provided that the Fundamental Representations shall survive indefinitely and the Tax Representations shall survive until the expiry of the applicable statute of limitations. Except as otherwise provided herein, all covenants and agreements contained herein shall survive for the duration of any statutes of limitations applicable thereto or until, by their respective terms, they are no longer operative.

Section 7.2.         Amendment. Any term of this Agreement may be amended only with the prior written consent of all parties hereto, and any amendment so made shall be effective and binding on all parties hereto. Any term of this Agreement may be waived only with the prior written consent of the party against whom such waiver is effective.

Section 7.3.         Waivers. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,

 26 

 

power or privilege. The conditions to each party’s obligation to consummate the Closing are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law. No waiver of any party to this Agreement will be effective unless it is in a writing signed by a duly authorized officer of the waiving party that makes express reference to the provision or provisions subject to such waiver.

Section 7.4.         Counterparts. For the convenience of the parties hereto, this Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement. Copies of executed signature pages to this Agreement may be delivered by electronic mail (“e-mail”) and such copies will be deemed as sufficient as if actual signature pages had been delivered.

Section 7.5.         Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflict of law principles.

Section 7.6.         Dispute Resolution. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination and the parties’ rights and obligations hereunder (each, a “Dispute”) shall be referred to and finally resolved by arbitration (the “Arbitration”) in the following manner:

(a)           The Arbitration shall be administered by the Hong Kong International Arbitration Centre (“HKIAC”);

(b)           The Arbitration shall be procedurally governed by the HKIAC Administered Arbitration Rules (the “HKIAC Rules”) as in force at the date on which the claimant party notifies the respondent party in writing (such notice, a “Notice of Arbitration”) of its intent to pursue Arbitration, which are deemed to be incorporated by reference and may be amended by this SECTION 7.6;

(c)           The seat and venue of the Arbitration shall be Hong Kong and the language of the Arbitration shall be English;

(d)           A Dispute subject to Arbitration shall be determined by a panel of three (3) arbitrators. One (1) arbitrator shall be nominated by the claimant party (and to the extent that there is more than one (1) claimant party, by mutual agreement among the claimant parties) and one (1) arbitrator shall be nominated by the respondent party (and to the extent that there is more than one (1) respondent party, by mutual agreement among the respondent parties). The third arbitrator shall be jointly nominated by the claimant party’s and respondent party’s respectively nominated arbitrators and shall act as the presiding arbitrator. If the claimant party or the respondent party fails to nominate its arbitrator within thirty (30) days from the date of receipt of the Notice of Arbitration by the respondent party or the claimant and respondent parties’ nominated arbitrators fail to jointly nominate the presiding arbitrator within thirty (30) days of the nomination of the respondent-nominated arbitrator, either party to the Dispute may request the Chairperson of the HKIAC to appoint such arbitrator; and

 27 

 

(e)           The parties hereto agree that all documents and evidence submitted in the Arbitration (including any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered save to the extent use or disclosure is permitted under the HKIAC Rules or unless the parties hereto otherwise agree in writing. The arbitral award is final and binding upon the parties to the Arbitration.

Section 7.7.         Notices. Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally, or upon confirmation of receipt if delivered by facsimile (if applicable) or e-mail, (b) on the first Business Day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the third Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered following the notice details set forth in Schedule 3 attached hereto.

Section 7.8.         Entire Agreement. This Agreement (together with all the Exhibits and Schedules hereto and certificates and other written instruments delivered in connection from time to time on and following the date hereof) constitute and contain the entire agreement and understanding of and among the parties hereto with respect to the subject matter hereof and thereof, and supersedes any and all prior negotiations, correspondence, agreements, understandings, duties and obligations among the parties hereto with respect to the subject matter hereof and thereof. Except as expressly set forth in this Agreement, no party hereto makes any representation, warranty, covenant or agreement to any other party of any nature, express or implied. Each party hereto expressly represents that it is not relying on any oral or written representation, warranties, covenants or agreements other than those expressly contained in this Agreement (which includes all Exhibits and Schedules hereto). The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and their permitted assigns. Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by any party hereto without the prior express written consent of the other parties hereto; provided that each Investor may assign its rights hereunder to a transferee of the Subject Securities that is an Affiliate of such Investor, provided further that no such assignment shall relieve any Investor of its obligations hereunder prior to Closing. Any purported assignment in violation of this SECTION 7.8 shall be null and void.

Section 7.9.         Definitions and Interpretation. For purposes hereof, terms, when used herein with initial capital letters, shall have the respective meanings given to them in the respective Sections set forth in the index of defined terms at the beginning of this Agreement. Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as amended, supplemented or modified from time to time. A reference to any applicable laws or to any legislation, or to any provision of applicable laws or of any legislation includes a reference to such applicable laws or legislation as amended or modified from time to time. All article, section, paragraph or clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex and schedule references

 28 

 

not attributed to a particular document shall be references to such exhibits, annexes and schedules to this Agreement. When used herein:

(1)           the term “2025 Convertible Notes” means the 2% convertible senior notes due June 1, 2025 in the aggregate principal amount of US$300 million, as disclosed in the Company’s Annual Report on Form 20-F for the year ended December 31, 2020;

(2)           the term “2029 Convertible Notes” means the 0.25% convertible senior notes due March 8, 2029 in the aggregate principal amount of US$620 million, as disclosed in the Company’s Annual Report on Form 20-F for the year ended December 31, 2021;

(3)           the term “ADS” means American Depositary Shares, each of which represents eight (8) Class A Ordinary Shares of the Company;

(4)           the term “Affiliate” or “Affiliated” means, with respect to any person, any person directly or indirectly controlling, controlled by or under common control with, such other person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) when used with respect to any person, means the possession, directly or indirectly, of the power to cause the direction of management and/or policies of such person, whether through the ownership of voting securities by contract or otherwise, provided that no portfolio company (as such term is commonly known or understood in the private equity industry) of any Fund or of any other investment vehicle managed and/or advised by the same or Affiliated investment manager or investment advisor shall be deemed to be an Affiliate of such person;

(5)           the term “Articles of Association” means, collectively, the Amended and Restated Memorandum of Association of the Company and the Amended and Restated Articles of Association of the Company, as each may be amended and/or restated from time to time;

(6)           the term “Beneficially Own” and “Beneficial Ownership” are defined in Rules 13d-3 and 13d-5 of the Exchange Act;

(7)           the term “Benefit Plan” means any retirement, pension, savings, health, welfare, employment, individual consulting, equity or equity-based, nonqualified deferred compensation, incentive, bonus, change in control, retention, severance, paid time off, vacation, post-termination or retiree health or welfare, fringe benefit or any other benefit or compensation plan, policy, program, con-tract, agreement or arrangement, in each case, that is sponsored, maintained, contributed to (or required to be contributed to) by any Group Company;

(8)           the term “Business Day” means a day (other than a Saturday or Sunday or days on which a tropical cyclone warning Number 8 or above or a “black” rain warning signal is hoisted in Hong Kong at any time between 9am and 5pm) on which banks in Hong Kong, Singapore, New York and the PRC are open for the transaction of normal banking business;

 29 

 

(9)           the term “Company Share Option Plans” means share options, share appreciation rights, restricted share units, restricted shares or other share-based awards issued pursuant either to the 2014 Equity Incentive Plan as referred in, or to the 2016 Equity Incentive Plan (as amended on August 6, 2020) as filed as exhibit 4.30 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2020;

(10)         the term “Company Systems” means all computer and information technology systems, platforms and networks owned or used by any Group Company (whether outsourced or not);

(11)         the term “Debt Agreement” means each note, debenture, other evidence of indebtedness, guarantee, loan, credit or financing agreement or instrument (including any notes indentures), finance leases, receivables purchase program or other contract or agreement for money borrowed or any amount raised under any other transaction having the commercial effect of borrowing, in each case, to which a Group Company is party, including any agreement or commitment for future loans, credit or financing, and all security, pledge, amendment documents, utilization requests, fee letters, guarantee, other finance documents and similar agreements relating to the foregoing;

(12)         the term “Fund” means any unit trust, investment trust, investment company, limited partnership, general partnership, collective investment scheme, pension fund, insurance company or other investment entity, in each, the assets of which are managed professionally for investment purposes;

(13)         the term “Fundamental Representations” means the representations and warranties in SECTION 2.1(a) (Incorporation, Organization and Good Standing), SECTION 2.1(b) (Capitalization), SECTION 2.1(c) (Authorization), SECTION 2.1(o) (No Delisting or Suspension of Trading), SECTION 2.1(q) (Status of Securities), SECTION 2.1(w) (Brokers and Finders) and SECTION 2.1 (x) (VIE Agreements).

(14)         the term “Group Companies” means the Company and all of its subsidiaries, consolidated Affiliated entities and their subsidiaries (individually, a “Group Company” collectively, the “Group Companies”);

(15)         the term “Hazardous Materials” means any material, substance, or waste as to which liability or standards of conduct may be imposed under Environmental Law.

(16)         the term “Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China.

(17)         the term “knowledge of the Company” or “Company’s knowledge” means the actual knowledge, after due inquiry, of the executive officers of the Company;

(18)         the term “Lien” means any liens, adverse rights or claims, charges, options, pledges, covenants, title defects, licenses, security interests or other encumbrances of any kind;

(19)         the term “Long Stop Date” means January 24, 2023 (inclusive);

 30 

 

(20)         the term “Material Adverse Effect” means any development, fact, circumstance, condition, event change, occurrence or effect that individually or in the aggregate (i) would or would reasonably be expected to have a material adverse effect on the ability of the Company to perform its material obligations under the Transaction Documents or consummate the transactions contemplated by the Transaction Documents or (ii) would have or would reasonably be expected to have a material adverse effect on the assets, business, financial condition or results of operations of the Group Companies, taken as a whole, other than any development, fact, circumstance, condition, event, change, occurrence or effect resulting from (A) changes in general economic, financial market, business, social or geopolitical conditions; (B) changes or developments in any of the industries in which the Company or any other Group Company operates; (C) changes in any applicable laws or applicable accounting regulations or principles, or the interpretation or enforcement thereof; (D) any change in the price or trading volume of the Company’s ADS representing Class A Ordinary Shares or any failure to meet any financial projections, forecasts or forward-looking statements (it being understood that this clause (D) shall not prevent or otherwise affect a determination that the underlying cause of any such change or failure referred to therein (to the extent not otherwise falling within any of the exceptions provided for under clauses (A) through (H) hereof) is a Material Adverse Effect); (E) any pandemic, epidemic, disease outbreak or other public health emergency (including the Coronavirus Disease 2019 (COVID-19)) or any lockdowns imposed pursuant thereto, natural disaster, or any outbreak or escalation of hostilities or war or any act of terrorism; (F) any suit, action or proceeding in respect of this Agreement or the transactions contemplated hereunder brought or commenced by any current or former shareholder of the Company (on their own behalf or on behalf of the Company); (G) the announcement of and performance of this Agreement by the Company, the pendency or consummation of the transactions contemplated hereunder, or the identity of the Investor or any of its Affiliates; or (H) any action taken, or failure to take action, by the Company or another Group Company that the Investor has consented to or requested in writing; provided, however, that any development, fact, circumstance, condition, event change, occurrence or effect in clauses (A), (B), (C) and (E) may be taken into account in determining whether there has been, or would reasonably be expected to be, individually or in the aggregate, a Material Adverse Effect to the extent such development, fact, circumstance, condition, event change, occurrence or effect has a disproportionate adverse effect on the assets, business, financial condition or results of operations of the Group Companies, taken as a whole, as compared to other participants in the industry or the market in which the Group Companies operate;

(21)         Material Customer Contract” means any contract, agreement or arrangement entered into by any Group Company, which is in force and effect as of the date hereof, with, or for providing services for the benefit of, any of the top three customers of the Group Companies ranked based on the aggregate revenue contribution associated with such customer as disclosed in the Company’s annual reports on Form 20-F for the fiscal year ended December 31, 2021 or as contemplated as of the date hereof to be disclosed in such annual report for the fiscal year ended December 31, 2022.

(22)         person” has the meaning given to it in Section3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act;

 31 

 

(23)         PRC” means the People’s Republic of China (for the purpose of this Agreement only, excluding Hong Kong, the Macao Special Administrative Region and Taiwan).

(24)         Securities” means any Ordinary Share or any equity interest of, or shares of any class in the share capital (ordinary, preferred or otherwise) of, the Company and any convertible securities, options, warrants and any other type of equity or equity-linked securities convertible, exercisable or exchangeable for any such equity interest or shares of any class in the share capital of the Company;

(25)         Subject Securities” means the applicable Investor Notes issued to each Investor at the Closing and any Class A Ordinary Shares or ADSs into which the Investor Notes are converted;

(26)         the term “Subsidiary” means any person that is controlled directly or indirectly by the Company, including the Company’s direct or indirect subsidiaries and consolidated Affiliated entities;

(27)         Tax Representations” means, with respect to the Company, the representations and warranties in SECTION 2.1(h) (Tax).

(28)         VIE Agreements” means, collectively, the contracts and instruments, including equity interest pledge agreements, shareholder voting rights proxy agreements, exclusive technology license and service agreements, exclusive call option agreements, intellectual property rights license agreements and loan agreements entered into among Beijing Wanguo Chang’an Science and Technology Co., Ltd, Shanghai Shu’an Data Services Co., Ltd, Shanghai Xinwan Enterprise Management Co., Ltd, its shareholders and GDS (Shanghai) Investment Co., Ltd., which enable the Company to control and consolidate with its financial statements each Group Company and its Affiliates in respect of which a majority of the equity is not directly held but is controlled by the Company;

(29)         the word “or” is not exclusive;

(30)         the words “including,” “includes,” “included” and “include” are deemed to be followed by the words “without limitation”;

(31)         the terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision; and

(32)         the words “it” or “its” are deemed to mean “him” or “her” and “his” or “her,” as applicable, when referring to an individual.

Section 7.10.       Captions. The article, section, paragraph and clause captions herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof.

 32 

 

Section 7.11.       Severability. If any provision of this Agreement is found to be invalid or unenforceable, then such provision shall be construed, to the extent feasible, so as to render the provision enforceable and to provide for the consummation of the transactions contemplated hereby on substantially the same terms as originally set forth herein, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect unless the severed provision is essential to the rights or benefits intended by the parties. In such event, the parties shall use commercially reasonable efforts to negotiate, in good faith, a substitute, valid and enforceable provision.

Section 7.12.       No Third-Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer or shall confer upon any person other than the express parties hereto, any benefit, right or remedies; provided that (i) the Investor Indemnified Parties (other than the Investors) and the Company Indemnified Parties (other than the Company) are express third party beneficiaries to the applicable provisions of SECTION 4.3 and (ii) J.P. Morgan and its affiliates are express third party beneficiaries to the representations and warranties set forth in SECTION 2.2(e). Subject to the immediately preceding sentence, the representations and warranties set forth in ARTICLE II and the covenants set forth in ARTICLES III and IV have been made solely for the benefit of the parties to this Agreement and (a) may be intended not as statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; and (b) may apply standards of materiality in a way that is different from what may be viewed as material by shareholders of, or other investors in, the Company.

Section 7.13.       Public Announcements. Without limiting any other provision of this Agreement, the parties hereto, to the extent permitted by applicable law, will consult with each other before issuance, and provide each other the opportunity to review, comment upon and agree on any press release or public statement with respect to this Agreement (which includes the Exhibits and Schedules hereto) and the transactions contemplated hereby and the ongoing business relationship among the parties hereto and thereto. The parties hereto (other than the Company) will not, and will cause its Affiliates not to, and the Company will not and will cause the other Group Companies not to, issue any such press release or make any such public statement without the prior written consent of the other parties, except as may be required by law or any listing agreement with or requirement of the NASDAQ or any other applicable securities exchange, provided that the disclosing party shall, to the extent permitted by applicable law or any listing agreement with or requirement of the NASDAQ or any other applicable securities exchange, inform the other party about the disclosure to be made pursuant to such requirements prior to the disclosure. With respect to each of Aspex Master Fund, Aspex Opportunity Master Fund, Ceningan Investment Pte Ltd and CPE Data Investment Limited, without the prior written consent of such Investor, the Company shall not, and shall cause the other Group Companies not to, use the name, logo or brand of such Investor or any of its Affiliates, claim itself as a partner of such Investor or any of its Affiliates or make any similar representations other than in connection with any Compelled Disclosure, subject to compliance with the provisions of SECTION 3.3.

Section 7.14.       Specific Performance. The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. Accordingly, each party hereto agrees that, in addition to any other available remedies a party hereto may have in equity or at law (but otherwise subject to any applicable limitation on remedies provided in this Agreement), each party

 33 

 

shall be entitled to enforce specifically the terms and provisions of this Agreement and to obtain an injunction restraining any breach or violation or threatened breach or violation of the provisions of this Agreement without necessity of posting a bond or other form of security. In the event that any proceeding should be brought in equity to enforce the provisions of this Agreement, no party hereto shall allege, and each party hereto hereby waives the defense, that there is an adequate remedy at law.

* * *

 34 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

By:

 
Name:  
Title:  

[Project Jedi – Note Purchase Agreement]

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

By:

 
Name:  
Title:  

[Project Jedi – Note Purchase Agreement]

 

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

  Ceningan Investment Pte Ltd.
     

By:

/s/
Name:  
Title: Director

[Project Jedi – Note Purchase Agreement]

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

  CPE Data Investment Limited
     

By:

/s/
Name:  
Title: Director

[Project Jedi – Note Purchase Agreement]

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

By:

 
Name:  
Title:  

[Project Jedi – Note Purchase Agreement]

 

 

 

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

By:

 
Name:  
Title:  

[Project Jedi – Note Purchase Agreement]

 

 

 

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

By:

 
Name:  
Title:  

[Project Jedi – Note Purchase Agreement]

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

By:

 
Name:  
Title:  

[Project Jedi – Note Purchase Agreement]

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

By:

 
Name:  
Title:  

[Project Jedi – Note Purchase Agreement]

 

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written.

GDS HOLDINGS LIMITED

By:

/s/ William Wei Huang
Name: William Wei Huang
Title: Director

[Project Jedi – Note Purchase Agreement]

Schedule 1: Investors and Investor Notes

Investor Name  Principal Amount of Notes
(in USD)
   Purchase Price
(in USD)
 
         
         
Ceningan Investment Pte Ltd   300,000,000    300,000,000 
           
CPE Data Investment Limited   90,000,000    90,000,000 
           
           
           
           
           
           
Total:   580,000,000    580,000,000 

 

[NOTE: The remaining Notes were purchased by a total of seven institutional investors. Each such institutional investor received an allocation of no more than 10% of the total principal amount of the Notes.]

 

Schedule 2: Company Disclosure Schedule

Schedule 3: Notices

Schedule 4: Company’s Bank Account Details

Exhibit A: Form of Officer’s Certificate from the Company

Exhibit B: Form of Legal Opinion of Cayman Islands Counsel

Exhibit C: Form of Indenture

 

Exhibit 4.2

 

EXECUTION VERSION

 

GDS HOLDINGS LIMITED

 

and

 

The Bank of New York Mellon, London Branch

 

as Trustee

 

INDENTURE

 

Dated as of January 20, 2023

 

4.50% Convertible Senior Notes due 2030

 

 

 

 

TABLE OF CONTENTS

 

ARTICLE 1 Definitions 1
   
Section 1.01 Definitions 1
Section 1.03 Interpretation 15
     
ARTICLE 2 Issue, Description, Execution, Registration and Exchange of Notes 16
   
Section 2.01 Designation, Amount and Ranking 16
Section 2.02 Form of Notes 16
Section 2.03 Date and Denomination of Notes; Payments of Interest and Defaulted Amounts 17
Section 2.04 Execution, Authentication and Delivery of Notes 18
Section 2.05 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary 20
Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes 26
Section 2.07 Temporary Notes 27
Section 2.08 Cancellation of Notes Paid, Converted, Etc. 28
Section 2.09 ISIN and Common Code Numbers 28
Section 2.10 Repurchases 28
     
ARTICLE 3 SATISFACTION AND DISCHARGE 29
   
Section 3.01 Satisfaction and Discharge 29
     
ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY 29
   
Section 4.01 Payment of Principal and Interest 29
Section 4.02 Maintenance of Office or Agency 29
Section 4.03 Appointments to Fill Vacancies in Trustee’s Office 30
Section 4.04 Provisions as to Paying Agent 30
Section 4.05 Existence 32
Section 4.06 [Reserved] 32
Section 4.07 Additional Amounts 32
Section 4.08 Stay, Extension and Usury Laws 35
Section 4.09 Compliance Certificate; Statements as to Defaults 36
Section 4.10 Further Instruments and Acts 36
     
ARTICLE 5 LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE 36
   
Section 5.01 Lists of Holders 36
Section 5.02 Preservation and Disclosure of Lists 37
     
ARTICLE 6 DEFAULTS AND REMEDIES 37
   
Section 6.01 Events of Default 37

 

 ii 

 

 

Section 6.02 Acceleration; Rescission and Annulment 38
Section 6.03 [Reserved] 39
Section 6.04 Payments of Notes on Default; Suit Therefor 40
Section 6.05 Application of Monies or Property Collected by Trustee 41
Section 6.06 Proceedings by Holders 42
Section 6.07 Proceedings by Trustee 43
Section 6.08 Remedies Cumulative and Continuing 43
Section 6.09 Direction of Proceedings and Waiver of Defaults by Majority of Holders 44
Section 6.10 Notice of Defaults and Events of Default 44
Section 6.11 Undertaking to Pay Costs 45
     
ARTICLE 7 CONCERNING THE TRUSTEE 45
   
Section 7.01 Duties and Responsibilities of Trustee 45
Section 7.02 Reliance on Documents, Opinions, Etc. 47
Section 7.03 No Responsibility for Recitals, Etc. 49
Section 7.04 Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes 49
Section 7.05 Monies to Be Held in Trust 50
Section 7.06 Compensation and Expenses of Trustee 50
Section 7.07 Officers’ Certificate as Evidence 51
Section 7.08 Eligibility of Trustee 51
Section 7.09 Resignation or Removal of Trustee 51
Section 7.10 Acceptance by Successor Trustee 52
Section 7.11 Succession by Merger, Etc. 53
Section 7.12 Trustee’s Application for Instructions from the Company 53
     
ARTICLE 8 CONCERNING THE HOLDERS 53
   
Section 8.01 Action by Holders 53
Section 8.02 Proof of Execution by Holders 54
Section 8.03 Who Are Deemed Absolute Owners 54
Section 8.04 Company-Owned Notes Disregarded 54
Section 8.05 Revocation of Consents; Future Holders Bound 55
     
ARTICLE 9 HOLDERS’ MEETINGS 55
   
Section 9.01 Purpose of Meetings 55
Section 9.02 Call of Meetings by Trustee 55
Section 9.03 Call of Meetings by Company or Holders 56
Section 9.04 Qualifications for Voting 56
Section 9.05 Regulations 56
Section 9.06 Voting 57
Section 9.07 No Delay of Rights by Meeting 57

 

 iii 

 

 

ARTICLE 10 SUPPLEMENTAL INDENTURES 58
   
Section 10.01 Supplemental Indentures Without Consent of Holders 58
Section 10.02 Supplemental Indentures with Consent of Holders 59
Section 10.03 Effect of Supplemental Indentures 60
Section 10.04 Notation on Notes 60
Section 10.05 Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee 61
     
ARTICLE 11 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE 61
   
Section 11.01 Company May Consolidate, Etc. on Certain Terms 61
Section 11.02 Successor Corporation to Be Substituted 62
Section 11.03 Opinion of Counsel to Be Given to Trustee 62
     
ARTICLE 12 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS 63
   
Section 12.01 Indenture and Notes Solely Corporate Obligations 63
     
ARTICLE 13 CONVERSION OF NOTES 63
   
Section 13.01 Conversion Privilege 63
Section 13.02 Conversion Procedure; Settlement Upon Conversion 64
Section 13.03 Forced Conversion. 67
Section 13.04 Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption 68
Section 13.05 Adjustment of Conversion Rate 71
Section 13.06 Adjustments of Prices 81
Section 13.07 Ordinary Shares to Be Fully Paid 81
Section 13.08 Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares. 81
Section 13.09 Certain Covenants 83
Section 13.10 Responsibility of Trustee 83
Section 13.11 Notice to Holders Prior to Certain Actions 84
Section 13.12 Shareholder Rights Plans 85
Section 13.13 Amendment Upon Unavailability of ADS Facility 85
     
ARTICLE 14 PRINCIPAL; REDEMPTION AT MATURITY 86
   
Section 14.01 Principal 86
Section 14.02 Redemption at Maturity 86
     
ARTICLE 15 REPURCHASE OF NOTES AT OPTION OF HOLDERS 86
   
Section 15.01 Repurchase at Option of Holders 86
Section 15.02 Repurchase at Option of Holders Upon a Fundamental Change 89

 

 iv 

 

 

Section 15.03 Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice 92
Section 15.04 Deposit of Repurchase Price or Fundamental Change Repurchase Price 92
Section 15.05 Covenant to Comply with Applicable Laws Upon Repurchase of Notes 93
     
ARTICLE 16 REDEMPTION ONLY FOR TAXATION REASONS 93
   
Section 16.01 No Redemption Except for Taxation Reasons 93
Section 16.02 Notice of Tax Redemption 94
Section 16.03 Payment of Notes Called for Tax Redemption for Taxation 96
Section 16.04 Holders’ Right to Avoid Redemption 96
Section 16.05 Restrictions on Tax Redemption 97
Section 16.06 Withdrawal of Notice of Election to Avoid a Tax Redemption 97
     
ARTICLE 17 MISCELLANEOUS PROVISIONS 97
   
Section 17.01 Binding on Company’s Successors 97
Section 17.02 Official Acts by Successor Corporation 97
Section 17.03 Addresses for Notices, Etc. 97
Section 17.04 Governing Law; Jurisdiction 99
Section 17.05 Submission to Jurisdiction; Service of Process 100
Section 17.06 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee 100
Section 17.07 Legal Holidays 101
Section 17.08 No Security Interest Created 101
Section 17.09 Benefits of Indenture 101
Section 17.10 Table of Contents, Headings, Etc. 101
Section 17.11 Execution in Counterparts 102
Section 17.12 Judgment Currency 102
Section 17.13 Severability 102
Section 17.14 Waiver of Jury Trial 102
Section 17.15 Force Majeure 102
Section 17.16 Calculations 103
Section 17.17 USA PATRIOT Act 103
Section 17.18 Remedies, Characterizations, other Obligations, Breaches and Injunctive Relief 103
Section 17.19 Sanctions 104

 

 v 

 

 

EXHIBITS

 

Exhibit A Form of Note A-1
     
Exhibit B Form of Authorization Certificate B-1
     
Exhibit C Form of Paying and Conversion Agent, Registrar and Transfer Agent Appointment Letter C-1

 

 vi 

 

 

INDENTURE dated as of January 20, 2023, between GDS Holdings Limited, an exempted company incorporated under the laws of the Cayman Islands, as issuer (the “Company”, as more fully set forth in Section 1.01 (Definitions)) and The Bank of New York Mellon, London Branch, a banking corporation organized under the laws of the State of New York with limited liability and operating through its branch in London at 160 Queen Victoria Street, London, EC4V 4LA, United Kingdom, as trustee (the “Trustee”, as more fully set forth in Section 1.01 (Definitions)).

 

WITNESSETH:

 

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its 4.50% Convertible Senior Notes due 2030 (the “Notes”), in the aggregate principal amount of up to US$580,000,000 pursuant to the Purchase Agreement, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and

 

WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Conversion Notice, the Form of Repurchase Notice, the Form of Fundamental Change Repurchase Notice, the Form of Assignment and Transfer, and the Form of Election Notice, as the case may be, to be borne by the Notes are to be substantially in the forms hereinafter provided; and

 

WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Note Registrar, as in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to its terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.

 

NOW, THEREFORE, THIS INDENTURE

 

That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:

 

ARTICLE 1
Definitions

 

Section 1.01           Definitions. The terms defined in this Section 1.01 (Definitions) (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01.

 

Additional ADSs” shall have the meaning specified in Section 13.04 (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption).

 

 

 

 

Additional Amounts” shall have the meaning specified in Section 4.07(a) (Additional Amounts).

 

ADS” means an American Depositary Share of the Company, issued pursuant to the Deposit Agreement, representing eight (8) Ordinary Shares as of the date of this Indenture, and deposited with the ADS Custodian.

 

ADS Cessation Date” shall have the meaning specified in Section 13.13 (Amendment Upon Unavailability of ADS Facility).

 

ADS Custodian” means JPMorgan Chase Bank, N.A., with respect to the ADSs delivered pursuant to the Deposit Agreement, or any successor entity thereto.

 

ADS Depositary” means JPMorgan Chase Bank, N.A., as depositary for the ADSs, or any successor entity thereto.

 

ADS Price” shall have the meaning specified in Section 13.04(c) (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption).

 

Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Agents” means the Paying Agent, the Note Registrar and the Conversion Agent appointed pursuant to Section 4.02 or a Paying and Conversion Agent, Registrar and Transfer Appointment Letter in the form of Exhibit C.

 

Agreed Threshold” shall have the meaning specified in Section 13.03 (Forced Conversion).

 

Amendment Event” shall have the meaning specified in Section 13.13 (Amendment Upon Unavailability of ADS Facility).

 

Applicable Tax Law” shall have the meaning specified in Section 4.07 (Additional Amounts).

 

Applicable Taxes” shall have the meaning specified in Section 4.07 (Additional Amounts).

 

Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.

 

 2 

 

 

Board Resolution” means a copy of a resolution certified by the Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

Business Day” means, with respect to any Note, any day other than a Saturday, Sunday or day on which banking institutions or trust companies in the Cayman Islands, Hong Kong, London or Beijing are, or the Federal Reserve Bank of New York is, authorized or required by law or executive order to close or to be closed.

 

Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.

 

CCASS” means the Central Clearing and Settlement System established and operated by Hong Kong Securities Clearing Company Limited, a wholly-owned Subsidiary of Hong Kong Exchanges and Clearing Limited.

 

Change in Law” shall have the meaning set forth in the definition of “Fundamental Change”.

 

Change in Tax Law” shall have the meaning specified in Section 16.01(a) (No Redemption Except for Taxation Reasons).

 

Class A Ordinary Shares” means the Class A ordinary shares of the Company, par value US$0.00005 per share, at the date of this Indenture, subject to Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares).

 

Class B Ordinary Shares” means the Class B ordinary shares of the Company, par value US$0.00005 per share, at the date of this Indenture, subject to Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares).

 

Clause A Distribution” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Clause B Distribution” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Clause C Distribution” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Clearstream” means Clearstream Banking S.A.

 

close of business” means 5:00 p.m. (New York City time).

 

Code” means the U.S. Internal Revenue Code of 1986, as amended.

 

Commission” means the U.S. Securities and Exchange Commission.

 

 3 

 

 

Common Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c) (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary) as the Common Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Common Depositary” shall mean or include such successor.

 

Common Equity” of any Person means ordinary share capital or Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

 

Company” shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 11 (Consolidation, Merger, Sale, Conveyance and Lease), shall include its successors and assigns.

 

Company Group” shall have the meaning set forth in the definition of “Fundamental Change”.

 

Company Notice” shall have the meaning specified in Section 15.01(a) (Repurchase at Option of Holders).

 

Company Order” means a written order of the Company, signed by an Officer of the Company and delivered to the Trustee.

 

Conversion Agent” shall have the meaning specified in Section 4.02 (Maintenance of Office or Agency).

 

Conversion Date” shall have the meaning specified in Section 13.02(c) (Conversion Procedure; Settlement Upon Conversion).

 

Conversion Notice” shall have the meaning specified in Section 13.02(b) (Conversion Procedure; Settlement Upon Conversion).

 

Conversion Obligation” shall have the meaning specified in Section 13.01 (Conversion Privilege).

 

Conversion Rate” shall have the meaning specified in Section 13.01 (Conversion Privilege).

 

Conversion Right” shall have the meaning specified in Section 13.01 (Conversion Privilege).

 

Conversion Securities” means (i) if the Conversion Date occurs prior to the Resale Restriction Termination Date, (x) Ordinary Shares in the form of restricted ADS or (y) Ordinary Shares registered in the Cayman Islands, which in each case bears the legend set forth in Section 2.05(d), as may be elected by the relevant Holder in writing in the Conversion Notice; and (ii) if the Conversion Date occurs after the Resale Restriction Termination Date, (x) Ordinary Shares in the form of ADS, (y) Ordinary Shares registered in the Company’s Hong Kong share registry in

 

 4 

 

 

CCASS or (z) Ordinary Shares registered in the Cayman Islands, as may be elected by the relevant Holder in writing in the Conversion Notice.

 

Corporate Trust Office” means an office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 160 Queen Victoria Street, London, EC4V 4LA, United Kingdom and shall include a reference to the Hong Kong Branch located at Level 26, Three Pacific Place, 1 Queen's Road East, Hong Kong, Attention: Global Corporate Trust, Fax: +852 2295 3283, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Company).

 

Daily VWAP” means, for any Trading Day, the per share volume-weighted average price of the ADS on The NASDAQ Global Market as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GDS US <EQUITY> VWAP” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or, if such volume-weighted average price is unavailable, the market value of one ADS on such Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session.

 

Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.

 

Defaulted Amounts” means any amounts on any Note (including, without limitation, the Tax Redemption Price, the Repurchase Price, the Fundamental Change Repurchase Price, principal and interest) that are payable but are not punctually paid or duly provided for (without taking into account any applicable grace period).

 

Deposit Agreement” means the deposit agreement dated as of November 1, 2016, by and among the Company, the ADS Depositary and all holders from time to time of ADSs issued thereunder or, if amended or supplemented as provided therein, as so amended or supplemented (including, without limitation, by the certain Restricted Issuance Agreement among GDS Holdings Limited, JP Morgan Chase Bank, N.A., as Depositary, and Holders of Restricted ADRs).

 

Distributed Property” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Effective Date” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Electronic Means” shall mean the following communications methods: (i) non-secure methods of transmission or communication such as e-mail and facsimile transmission and (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee and/or the Agents, or another method or system

 

 5 

 

 

specified by the Trustee and/or the Agents as available for use in connection with its services hereunder.

 

Euroclear” means Euroclear Bank SA/NV.

 

Events of Default” shall have the meaning specified in Section 6.01 (Event of Default).

 

Ex-Dividend Date” means the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

Expiration Date” shall have the meaning specified in Section 13.05(e) (Adjustment of Conversion Rate).

 

Expiring Rights” means any rights, options or warrants to purchase Conversion Securities that expire on or prior to the Maturity Date.

 

FATCA” shall have the meaning specified in Section 4.07 (Additional Amounts).

 

“Forced Conversion” shall have the meaning specified in Section 13.03(a) (Forced Conversion).

 

“Forced Conversion Date” shall have the meaning specified in Section 13.03(a) (Forced Conversion).

 

“Forced Conversion Notice” shall have the meaning specified in Section 13.03(a) (Forced Conversion).

 

“Forced Conversion Qualification Period” shall have the meaning specified in Section 13.03(a) (Forced Conversion).

 

Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as Attachment 4 to the Form of Note attached hereto as Exhibit A.

 

Form of Conversion Notice” shall mean the “Form of Conversion Notice” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.

 

Form of Election Notice” shall mean the “Form of Election Notice” attached as Attachment 5 to the Form of Note attached hereto as Exhibit A.

 

Form of Fundamental Change Repurchase Notice” shall mean the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.

 

 6 

 

 

Form of Repurchase Notice” shall mean the “Form of Repurchase Notice” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.

 

Fundamental Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:

 

(a)            (1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than:

 

(x)the Company and its Subsidiaries, and

 

(y)any party (together with any other “person” or “group” subject to aggregation of the Class A ordinary share capital of the Company (including Class A ordinary share capital held in the form of ADSs) with such party under Section 13(d) of the Exchange Act) that has filed a Schedule 13D with the Securities and Exchange Commission pursuant to the Exchange Act indicating that, as of the date of the Purchase Agreement such party is the “beneficial owner” of at least 20.0% of the voting power of the Company’s Class A ordinary share capital (including Class A ordinary share capital held in the form of ADSs) (such party a “Major Shareholder”),

 

files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner” of the Class A ordinary share capital (including Class A ordinary share capital held in the form of ADSs) of the Company representing more than 50.0% of the number of the Class A Ordinary Shares outstanding (including Class A Ordinary Shares held in the form of ADSs) of the Company; or

 

(2) any Major Shareholder (together with any other “person” or “group” subject to aggregation of the Class A ordinary share capital (including ordinary share capital held in the form of ADSs) of the Company with such Major Shareholder under Section 13(d) of the Exchange Act) has become the direct or indirect “beneficial owners” of the ordinary share capital (including ordinary share capital held in the form of ADSs) of the Company representing, in the aggregate, more than 66.67% of the voting power of the Class A ordinary share capital (including Class A ordinary share capital held in the form of ADSs) of the Company;

 

provided that, as used in this clause (a)(1), the term “beneficial owner” shall have the meaning defined in Rule 13d-3 under the Exchange Act;

 

(b)the consummation of (1) any recapitalization, reclassification or change of the Ordinary Shares or the ADSs (other than changes resulting from a subdivision or combination) as a result of which the Ordinary Shares or the ADSs would be converted into, or exchanged for, stock, other securities, other property or assets; (2) any share exchange, consolidation or merger of the Company, or any similar transaction, pursuant to which the Ordinary Shares or the ADSs will be converted into cash, securities or other property; or (3) any conveyance, sale, lease or other

 

 7 

 

 

transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s wholly-owned Subsidiaries; provided, however, that a transaction described in clause (2) in which the holders of all classes of the ordinary share capital of the Company immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of common equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions vis-à-vis each other as their ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);

 

(c)the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company (other than in a transaction described in clause (b) above);

 

(d)the ADSs or the Ordinary Shares (or other Common Equity into which the Notes are then convertible, as applicable) cease to be listed on both (i) The NASDAQ Global Market (or its successor) and (ii) the Hong Kong Stock Exchange (or its successor), unless the ADSs or Ordinary Shares (or other Common Equity into which the Notes are then convertible) are listed for trading on any other U.S. Exchange or Permitted Exchange, or the ADSs are suspended from trading in The NASDAQ Global Market (or its successor) for ten (10) consecutive Trading Days; or

 

(e)(i) there is any change in or amendment to the laws, regulations and rules of the PRC (including any political subdivision or regulatory authority thereof or therein) or the official interpretation or official application thereof (any such event, a “Change in Law”) that results in (x) the Company, the Company’s Subsidiaries and its consolidated affiliated entities (collectively, the “Company Group”) (as in existence immediately subsequent to such Change in Law), as a whole, being legally prohibited from operating substantially all of the business operations conducted by the Company Group (as in existence immediately prior to such Change in Law) as of the last date of the period described in the Company’s consolidated financial statements for the most recent fiscal quarter and (y) the Company being unable to continue to derive substantially all of the economic benefits from the business operations conducted by the Company Group (as in existence immediately prior to such Change in Law) in the same manner as reflected in the Company’s consolidated financial statements for the most recent fiscal quarter and (ii) the Company has not furnished to the Trustee, prior to the date that is six months after the date of the Change in Law, an opinion from an independent financial advisor or an independent legal counsel stating either (x) that the Company is able to continue to derive substantially all of the economic benefits from the business operations conducted by the Company Group (as in existence immediately prior to such Change in Law), taken as a whole, as reflected in the Company’s consolidated financial statements for the most recent fiscal quarter (including after giving effect to any corporate restructuring or reorganization plan of the Company Group) or (y) that such

 

 8 

 

 

Change in Law would not materially adversely affect the Company’s ability to make principal and interest payments on the Notes when due or to convert the Notes in accordance herewith;

 

provided, however, that a transaction or event described in clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be received by holders of the Ordinary Shares or ADSs (excluding cash payments for fractional Ordinary Shares or ADSs) in the transaction or event that would otherwise constitute a Fundamental Change consists of shares of Common Equity or ADSs in respect of Common Equity that are listed on a U.S. Exchange or that will be so listed when issued or exchanged in connection with such transaction or event that would otherwise constitute a Fundamental Change under clause (b) of the definition thereof, and as a result of such transaction or event, the Notes become convertible into such consideration, excluding cash payments for any fractional Ordinary Shares or ADSs (subject to settlement in accordance with the provisions of Article 13 (Conversion of Notes)); for the avoidance of doubt, an event that is not considered a Fundamental Change pursuant to this proviso shall not be a Fundamental Change solely because such event could also be subject to clause (a) above.

 

Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(b) (Repurchase at Option of Holders Upon a Fundamental Change).

 

Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change).

 

Fundamental Change Repurchase Notice” shall have the meaning specified in Section 15.02(a)(i) (Repurchase at Option of Holders Upon a Fundamental Change).

 

Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change).

 

Global Note” shall have the meaning specified in Section 2.05(b) (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary).

 

Holder,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), shall mean any Person in whose name at the time a particular Note is registered on the Note Register.

 

Hong Kong” means Hong Kong Special Administrative Region of the PRC.

 

Hong Kong Stock Exchange” means The Stock Exchange of Hong Kong Limited.

 

Indenture” means this indenture as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.

 

Interest Payment Date” means each July 31 and January 31 of each year or, if the relevant date is not a Business Day, the immediately following Business Day, beginning on July 31, 2023.

 

 9 

 

 

Judgment Currency” shall have the meaning specified in Section 17.12 (Judgment Currency).

 

Last Reported Sale Price” of the ADSs on any Trading Day means the closing sale price per ADS (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the ADSs are listed. If the ADSs are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the ADSs in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the ADSs are not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the ADSs on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

 

Major Shareholder” has the meaning set forth in the definition of “Fundamental Change”.

 

Make-Whole Fundamental Change” means any transaction or event described in clause (a), (b), (d) or (e) of the definition of Fundamental Change (determined after giving effect to any exceptions to or exclusions from such definition, including in the proviso immediately succeeding clause (e) of the definition thereof, but without regard to the proviso in clause (b) of the definition thereof).

 

Market Disruption Event” means, if the ADSs are listed for trading on The NASDAQ Global Market or another United States national or regional securities exchange or if the ADSs or Ordinary Shares are listed for trading on another market, the occurrence or existence during the one-half hour period ending on the scheduled close of trading on any scheduled Trading Day of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant securities exchange or otherwise) in the ADSs or Ordinary Shares or in any options, contracts or futures contracts relating to the ADSs or Ordinary Shares.

 

Maturity Date” means January 31, 2030.

 

Maturity Redemption Price” shall have the meaning specified in Section 14.02 (Redemption at Maturity).

 

Merger Event” shall have the meaning specified in Section 13.08(a) (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares).

 

Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of this Indenture.

 

Note Register” shall have the meaning specified in Section 2.05(a) (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary).

 

 10 

 

 

Note Registrar” shall have the meaning specified in Section 2.05(a) (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary).

 

Officer” means, with respect to the Company, the Executive Chairman, the Directors, the Chief Executive Officer, the Chief Financial Officer or the Secretary (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”).

 

Officers’ Certificate,” when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by any two Officers of the Company. Each such certificate shall include the statements provided for in Section 17.06 (Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee) if and to the extent required by the provisions of such Section. One of the Officers giving an Officers’ Certificate pursuant to Section 4.09 (Compliance Certificate; Statements as to Defaults) shall be the principal executive, financial or accounting officer of the Company.

 

open of business” means 9:00 a.m. (New York City time).

 

Opinion of Counsel” means an opinion in writing signed by legal counsel and in a form reasonably acceptable to the Trustee, who may be an employee of or counsel to the Company, or other counsel acceptable to the Trustee, that is delivered to the Trustee. Each such opinion shall include the statements provided for in Section 17.06 (Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee) if and to the extent required by the provisions of such Section 17.06 (Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee).

 

Ordinary Shares” means the Class A Ordinary Shares.

 

outstanding,” when used with reference to Notes, shall, subject to the provisions of Section 8.04 (Company-Owned Notes Disregarded), mean, as of any particular time, all Notes authenticated and delivered by the Note Registrar under this Indenture, except:

 

(a)Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;

 

(b)Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent);

 

(c)Notes that have been paid pursuant to Section 2.06 (Mutilated, Destroyed, Lost or Stolen Notes) or Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06 (Mutilated, Destroyed, Lost or Stolen Notes) unless proof satisfactory to the Note Registrar is presented that any such Notes are held by protected purchasers in due course;

 

 11 

 

 

(d)Notes converted pursuant to Article 13 (Conversion of Notes) and required to be cancelled pursuant to Section 2.08 (Cancellation of Notes Paid, Converted, Etc.);

 

(e)Notes repurchased by the Company pursuant to Section 2.10 (Repurchases);

 

(f)Notes repurchased by the Company pursuant to Section 15.01 (Repurchase at Option of Holders) and Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change); and

 

(g)Notes repurchased by the Company pursuant to Article 16 (Redemption Only for Taxation Reasons).

 

Paying Agent” shall have the meaning specified in Section 4.02 (Maintenance of Office or Agency).

 

Permitted Exchange” means the Hong Kong Stock Exchange or any other reputable international stock exchange (or any of their respective successors).

 

Person” means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.

 

Physical Notes” means permanent certificated Notes in registered form issued in minimum denominations of US$200,000 principal amount and integral multiples of US$1,000 in excess thereof.

 

PRC” means the People’s Republic of China (for the purpose of this Indenture only, excluding Hong Kong, the Macao Special Administrative Region and Taiwan).

 

Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 (Mutilated, Destroyed, Lost or Stolen Notes) in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.

 

Principal Office” means the office of the Paying and Conversion Agent at which the business of the Paying and Conversion Agent is principally administered, which at the date of this Indenture is located at 160 Queen Victoria Street, London, EC4V 4LA, United Kingdom, Attn: Corporate Trust Administration – GDS Holdings Limited, facsimile number: +44 1202 689660, and shall also include a reference to The Bank of New York Mellon, Hong Kong Branch, located at Level 26, Three Pacific Place, 1 Queen’s Road East, Hong Kong, Attn: Global Corporate Trust, facsimile number: +852 2295 3283.

 

Purchase Agreement” means that certain Note Purchase Agreement, dated as of January 11, 2023 among the Company and the Investors listed in Schedule I thereto, relating to the issuance and sale of the Notes.

 

 12 

 

 

Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Conversion Securities (or other applicable security) have the right to receive any cash, securities or other property or in which the Conversion Securities (or such other security) are exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of security holders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, statute, contract or otherwise).

 

Reference Property” shall have the meaning specified in Section 13.08(a) (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares).

 

Regular Record Date,” with respect to any Interest Payment Date, shall mean the January 15 or July 15 (whether or not such day is a Business Day) immediately preceding the applicable January 31 or July 31 Interest Payment Date, respectively.

 

Regulation S” means Regulation S under the Securities Act or any successor to such regulation.

 

Relevant Taxing Jurisdiction” shall have the meaning specified in Section 4.07(a) (Additional Amounts).

 

Repurchase Date” shall have the meaning specified in Section 15.01(a).

 

Repurchase Expiration Time” shall have the meaning specified in Section 15.01(a).

 

Repurchase Notice” shall have the meaning specified in Section 15.01(a).

 

Repurchase Price” shall have the meaning specified in Section 15.01(a).

 

Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c) (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary).

 

Responsible Officer” means any managing director, vice president, trust associate, relationship manager, transaction manager, client service manager, any trust officer or any other officer located at the Corporate Trust Office who customarily performs functions similar to those performed by any persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and in each such case, who shall have direct responsibility for the administration of this Indenture.

 

Restricted Securities” shall have the meaning specified in Section 2.05(c) (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary).

 

Scheduled Trading Day” means a day that is scheduled to be a trading day on the primary United States national or regional securities exchange or market on which the ADSs are listed or admitted for trading. If the ADSs are not so listed or admitted for trading, “Scheduled Trading Day” means a “Business Day.”

 

 13 

 

 

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

Significant Subsidiary” means a Subsidiary of the Company that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act.

 

Spin-Off” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person, which shall, for the avoidance of doubt, include any variable interest entity whose assets and financial results are consolidated with the assets and financial results of such Person and are recorded on the financial statements of such Person for financial reporting purposes in accordance with applicable accounting standards (each a “VIE”) and any Subsidiary of such VIEs.

 

Successor Company” shall have the meaning specified in Section 11.01(a) (Company May Consolidate, Etc. on Certain Terms).

 

Tax Redemption” shall have the meaning specified in Section 16.01 (No Redemption Except for Taxation Reasons).

 

Tax Redemption Date” shall have the meaning specified in Section 16.02(a) (Notice of Tax Redemption).

 

Tax Redemption Notice” shall have the meaning specified in Section 16.02(a) (Notice of Tax Redemption).

 

Tax Redemption Price” means, for any Notes to be redeemed pursuant to Section 16.01 (No Redemption Except for Taxation Reasons), 100% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to, but excluding, the Tax Redemption Date (unless the Tax Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case the Tax Redemption Price will be equal to 100% of the principal amount of such Notes) including, for the avoidance of doubt, any Additional Amounts with respect to such amount.

 

Trading Day” means a scheduled trading day on which (i) trading in the ADSs generally occurs on The NASDAQ Global Market or, if the ADSs are not then listed on The NASDAQ Global Market, on the principal other United States national or regional securities exchange on which the ADSs are then listed or, if the ADSs or Ordinary Shares are not then listed on a United States national or regional securities exchange, on the principal other market on which the ADSs or Ordinary Shares are then traded, and (ii) there is no Market Disruption Event; if the ADSs are not so listed or traded, “Trading Day” means a “Business Day.”

 

 14 

 

 

transfer” shall have the meaning specified in Section 2.05(c) (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary).

 

Trigger Event” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.

 

Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

 

unit of Reference Property” shall have the meaning specified in Section 13.08(a) (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares).

 

U.S. Dollar”, “US$” or “$” means the legal currency of the United States of America.

 

U.S. Exchange” means any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors).

 

U.S. Person” shall have the meaning as such term is defined under Regulation S.

 

Valuation Period” shall have the meaning specified in Section 13.05(c) (Adjustment of Conversion Rate).

 

Section 1.02           Interpretation.

 

(a)Headings used in this Indenture are for ease of reference only and shall be ignored in interpreting this Indenture.

 

(b)The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.

 

(c)References to Sections and Exhibits are references to Sections and Exhibits of or to this Indenture.

 

(d)Words and expressions in the singular include the plural and vice versa and words and expressions importing one gender include every gender.

 

(e)Whenever the words “include,” “includes” or “including” are used in this Indenture, they are deemed to be followed by the words “without limitation.”

 

 15 

 

 

ARTICLE 2
Issue, Description, Execution, Registration and Exchange of Notes

 

Section 2.01           Designation, Amount and Ranking. (a) The Notes shall be designated as the “4.50% Convertible Senior Notes due 2030” and shall bear interest at the rate of 4.50% per annum. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is limited to US$580,000,000 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.05 (Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary), Section 2.06 (Mutilated, Destroyed, Lost or Stolen Notes), Section 2.07 (Temporary Notes), Section 10.04 (Notation on Notes), Section 13.02 (Conversion Procedure; Settlement Upon Conversion) and Section 15.04 (Deposit of Repurchase Price or Fundamental Change Repurchase Price).

 

(b)            Unless previously converted pursuant to this Indenture, the Notes shall constitute unsecured, senior obligations of the Company and shall rank pari passu in right of payment with all other present and future senior unsecured indebtedness of the Company and shall rank senior in right of payment to all present and future indebtedness of the Company that is contractually subordinated to the Notes; will be effectively subordinated to all of the present and future secured indebtedness of the Company to the extent of the value of collateral securing such indebtedness; and will be structurally subordinated to the claims of creditors of the Company’s Subsidiaries and its consolidated affiliated entities.

 

Section 2.02           Form of Notes. The Notes and the certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. To the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Common Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to

 

 16 

 

 

conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.

 

Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, redemptions, cancellations, conversions, transfers or exchanges permitted hereby. Any endorsement of the Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Registrar in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.

 

Section 2.03           Date and Denomination of Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without coupons in minimum denominations of US$200,000 principal amount and integral multiples of US$1,000 in excess thereof. Each Note shall be dated the date of its authentication and shall bear interest at a fixed rate equal to 4.50% per annum, on the outstanding principal amount of the Notes from the date specified on the face of such Note until all the outstanding principal amounts are fully repaid; provided that if any portion of the principal amount is duly converted, exchanged, redeemed, repurchased or otherwise cancelled in accordance with the terms of this Indenture, interest shall cease to accrue on the portion of the principal amount so converted, exchanged, redeemed, repurchased or otherwise cancelled. Accrued interest on the Notes shall be payable on each Interest Payment Date and be computed on the basis of a 360-day year composed of twelve 30-day months and, for any partial month, on a pro rata basis based on the number of days actually elapsed over a 30-day month. The principal amount of the Notes may not be prepaid, in whole or in part, prior to the Maturity Date without the written consent of the Holder, except as provided in Article 15 (Repurchase of Notes at Option of Holders) or Article 16 (Redemption only for Taxation Reasons).

 

(b)            The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable at the office or agency of the Company maintained by the Company for such purposes, which shall initially be the Principal Office. The Company shall pay, or cause the Paying Agent to pay, interest (i) on Physical Notes, if any, (A) to Holders holding Physical Notes, if any, having an aggregate principal amount of US$1,000,000 or less, by check mailed (at the Company’s expense) to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than US$1,000,000, either by check mailed (at the Company’s expense) to such Holders or, upon application by such Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account

 

 17 

 

 

within the United States, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Common Depositary or its nominee. So long as the Notes are held in global form, all payments in respect of the Global Note will be made to the Holder thereof as of the close of business (of the relevant clearing system) on the Clearing System Business Day before the due date for such payments, where “Clearing System Business Day” means a weekday (Monday to Friday, inclusive) except December 25 and January 1.

 

(c)            Without prejudice to any Default or Event of Default that may arise as a result of non-payment of any Defaulted Amount on its scheduled payment date, any Defaulted Amounts shall accrue interest per annum at the rate per annum borne by the Notes plus 1.00%, subject to the enforceability thereof under applicable law, from, and including, such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company as provided in Section 2.03(d) (Date and Denomination of Notes; Payments of Interest and Defaulted Amounts) below.

 

(d)            The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee in writing of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Amounts and the special record date therefor to be mailed, first-class postage prepaid (at the Company’s expense), to each Holder at its address as it appears in the Note Register or, in the case of Global Notes, sent electronically in accordance with the applicable rules and procedures of Euroclear and/or Clearstream, not less than 10 days prior to such special record date, in the form of notice prepared by the Company. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so sent, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date.

 

Section 2.04           Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive Officer or Chief Financial Officer. With the delivery of this Indenture, the

 

 18 

 

 

Company is furnishing, and from time to time thereafter may furnish, a certificate substantially in the form of Exhibit B (an “Authorization Certificate”) identifying and certifying the incumbency and specimen (and/or facsimile) signatures of its active authorized Officers. Until the Trustee receives a subsequent Authorization Certificate, the Trustee shall be entitled to conclusively rely on the last Authorization Certificate delivered to it for purposes of determining the relevant authorized Officers. Typographical and other minor errors or defects in any signature shall not affect the validity or enforceability of any Note which has been duly authenticated and delivered by the Note Registrar.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Note Registrar for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Note Registrar in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.

 

The Company Order shall specify the amount of Notes to be authenticated (including the initial amount of the Notes), the applicable rate at which interest will accrue on such Notes, the date on which the original issuance of such Notes is to be authenticated, the date from which interest will begin to accrue, the date or dates on which interest on such Notes will be payable and the date on which the principal of such Notes will be payable and other terms relating to such Notes. The Note Registrar shall thereupon authenticate and deliver said Notes to or upon the written order of the Company (as set forth in such Company Order).

 

The Note Registrar shall have the right to decline to authenticate and deliver any Notes under this Indenture (a) unless and until it receives from the Company a Company Order instructing it to so authenticate and deliver such Notes and an Officers’ Certificate and Opinion of Counsel in accordance with Section 17.06 (Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee) hereof ; (b) if the Trustee determines that such action may not lawfully be taken; or (c) if the Trustee determines that such action would expose to Trustee to personal liability, unless indemnity and/or security and/or pre-funding satisfactory to the Trustee against such liability is provided to the Trustee and Note Registrar.

 

Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, executed manually by an authorized officer of the Note Registrar, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Note Registrar upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

 

In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Note Registrar, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the Company by such Persons as, at the actual date of the execution of such Note, shall be the Officers of the

 

 19 

 

 

Company, although at the date of the execution of this Indenture any such Person was not such an Officer.

 

Section 2.05           Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 4.02 (Maintenance of Office or Agency), the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Bank of New York Mellon SA/NV, Dublin Branch is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02 (Maintenance of Office or Agency).

 

Prior to the Resale Restriction Termination Date, upon surrender for registration of transfer of any Physical Notes to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Note Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Physical Notes, of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture. Following the Resale Restriction Termination Date, upon surrender for registration of transfer of any Physical Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Note Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Physical Notes of any authorized denominations and of a like aggregate principal amount and not bearing the restrictive legends required by Section 2.05(c).

 

All Notes presented or surrendered for registration of transfer or for exchange, redemption, repurchase or conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Note Registrar and Trustee and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.

 

No service charge shall be imposed by the Company, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.

 

None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 (Repurchase of Notes at Option of Holders).

 

 20 

 

 

All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.

 

The Trustee shall have no responsibility or obligation to any direct or indirect participant or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of Euroclear and/or Clearstream or any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any direct or indirect participant or other Person (other than the Common Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Common Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Common Depositary subject to the customary rules and procedures of Euroclear and/or Clearstream. The Trustee may rely and shall be fully protected in relying upon information furnished by Euroclear and/or Clearstream with respect to their direct or indirect participants.

 

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among direct or indirect participants in any Global Note) other than to require delivery of such certificates as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

(b)            So long as the Notes are eligible for book-entry settlement with Euroclear and/or Clearstream, unless otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “Global Note”) registered in the name of the Common Depositary or the nominee of the Common Depositary for the accounts of Euroclear and Clearstream. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Common Depositary in accordance with this Indenture (including the restrictions on transfer set forth herein), and the rules and procedures of Euroclear and/or Clearstream.

 

(c)            Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any ADSs (including the Ordinary Shares represented thereby) delivered upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term

 

 21 

 

 

transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.

 

Until the date (the “Resale Restriction Termination Date”) that is (a) the earlier of (1) the date that is one year after the date of original issuance of the Notes, or (2) such shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision thereto, or (b) such later date, if any, as may be required by applicable law, any certificate evidencing a Note (and all securities issued in exchange therefor or substitution thereof, other than ADSs (including the Ordinary Shares represented thereby) issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):

 

THIS SECURITY, THE AMERICAN DEPOSITARY SHARES DELIVERABLE UPON CONVERSION OF THIS SECURITY AND THE CLASS A ORDINARY SHARES REPRESENTED THEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND ARE “RESTRICTED SECURITIES” WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT OR CONTRACTUALLY RESTRICTED SECURITIES, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

 

(1)            REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS NOT A U.S. PERSON AND LOCATED OUTSIDE THE UNITED STATES (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT AND THAT IT AND ANY SUCH ACCOUNT IS NOT, AND HAS NOT BEEN FOR THE IMMEDIATELY PRECEDING THREE MONTHS, AN AFFILIATE OF GDS HOLDINGS LIMITED (THE “COMPANY”), AND

 

(2)            AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS (X) THE EARLIER OF (I) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF, OR (II) SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO, OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

 

(A)TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

 

(B)PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

 

 22 

 

 

(C)TO A PERSON OUTSIDE THE UNITED STATES AND THEREAFTER OUTSIDE THE UNITED STATES, IN EACH CASE IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR

 

(D)PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR ANOTHER EXEMPTION FROM REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IF AVAILABLE).

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY, THE COMMON DEPOSITARY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.

 

NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT (“RULE 144”)) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE IMMEDIATELY PRECEDING MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR OWN THIS NOTE OR A BENEFICIAL INTEREST HEREIN.

 

No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.

 

The Company shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date and after a registration statement, if any, with respect to the Notes or the ADSs (including the Ordinary Shares represented thereby) issued upon conversion of the Notes has been declared effective under the Securities Act.

 

Ownership of beneficial interests in the Global Notes (the “book-entry interests”) will be limited to persons that have accounts with Euroclear and/or Clearstream or persons that may hold interests through such participants. Book-entry interests will be shown on, and transfers thereof will be effected only through, records maintained in book-entry form by Euroclear and Clearstream and their participants. Except as set forth in this Section 2.05(c), the book-entry interests will not be held in definitive form. Instead, Euroclear and/or Clearstream will credit on their respective book-entry registration and transfer systems a participant’s account with the interest beneficially owned by such participant. The laws of some jurisdictions may require that certain purchasers of securities take physical delivery of such securities in definitive form. The foregoing limitations may impair the ability to own, transfer or pledge book-entry interests. So

 

 23 

 

 

long as the Notes are held in global form, the common depositary for Euroclear and/or Clearstream (or its nominee) will be considered the sole holder of the Global Notes. As such, participants must rely on the rules and procedures of Euroclear and Clearstream and indirect participants must rely on the procedures of the participants through which they own book-entry interests in order to transfer their interests in the Notes or to exercise any rights of Holders under this Indenture.

 

Each Global Note shall be deposited with and registered in name of the nominee of the common depositary for Euroclear and Clearstream (the “Common Depositary”), which shall initially be The Bank of New York Mellon, London Branch.

 

If (i) the Common Depositary notifies the Company at any time that the Common Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, (ii) either Euroclear or Clearstream, or a successor clearing system is closed for business for a continuous period of 14 days (other than by reason of holidays, statutory or otherwise) or announces an intention to permanently cease business or does in fact do so or (iii) an Event of Default with respect to the Notes has occurred and is continuing and a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall execute, and the Note Registrar, upon receipt of an Officers’ Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.

 

Persons exchanging interests in the Global Notes for Physical Notes pursuant to this Section 2.05(c) shall be required to provide to the Note Registrar, through the relevant clearing system, written instructions and other information required by the Company and the Note Registrar to complete, execute and deliver such Physical Notes. Physical Notes delivered in exchange for the Global Notes or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by the relevant clearing system.

 

At such time as all interests in a Global Note have been converted, canceled, redeemed, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing procedures and existing instructions of the Common Depositary. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and existing instructions of the Common Depositary, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee, to reflect such reduction or increase.

 

None of the Company, the Trustee, the Paying Agent, any agent of the Company or any agent of the Trustee shall have any responsibility or liability for any aspect of the records relating

 

 24 

 

 

to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

(d)            Until the Resale Restriction Termination Date, any stock certificate representing ADSs (including the Ordinary Shares represented thereby) issued upon conversion of a Note shall bear a legend in substantially the following form (unless the Note or such ADSs (including the Ordinary Shares represented thereby) have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or such ADSs (including the Ordinary Shares represented thereby) have been issued upon conversion the Notes that have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent for the ADSs):

 

THIS SECURITY, THE AMERICAN DEPOSITARY SHARES DELIVERABLE UPON CONVERSION OF THIS SECURITY AND THE CLASS A ORDINARY SHARES REPRESENTED THEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND ARE “RESTRICTED SECURITIES” WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT OR CONTRACTUALLY RESTRICTED SECURITIES, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

 

(1)            REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS NOT A U.S. PERSON AND LOCATED OUTSIDE THE UNITED STATES (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT AND THAT IT AND ANY SUCH ACCOUNT IS NOT, AND HAS NOT BEEN FOR THE IMMEDIATELY PRECEDING THREE MONTHS, AN AFFILIATE OF GDS HOLDINGS LIMITED (THE “COMPANY”), AND

 

(2)            AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS (X) THE EARLIER OF (I) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF, OR (II) SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO, OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

 

(A)TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

 

(B)PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

 

 25 

 

 

(C)TO A PERSON OUTSIDE THE UNITED STATES AND THEREAFTER OUTSIDE THE UNITED STATES, IN EACH CASE IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR

 

(D)PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OR ANOTHER EXEMPTION FROM REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IF AVAILABLE).

 

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY, THE COMMON DEPOSITARY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.

 

NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT (“RULE 144”)) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE IMMEDIATELY PRECEDING MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR OWN THIS NOTE OR A BENEFICIAL INTEREST HEREIN.

 

Any such ADSs as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such ADSs for exchange in accordance with the procedures of the transfer agent for the ADSs, be exchanged for a new certificate or certificates for a like aggregate number of ADSs, which shall not bear the restrictive legend required by this Section 2.05(d).

 

(e)            Any Note or ADS delivered upon the conversion or exchange of a Note that is repurchased or owned by any Affiliate of the Company may not be resold by such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act in a transaction that results in such Note or ADS, as the case may be, no longer being a “restricted security” (as defined under Rule 144 under the Securities Act). The Company shall cause any Note that is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.08 (Cancellation of Notes Paid, Converted, Etc).

 

Section 2.06           Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon the receipt of a Company Order, the Note Registrar shall authenticate and deliver, a new Note,

 

 26 

 

 

bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company and to the Trustee such security and/or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

 

The Note Registrar may authenticate any such substituted Note and deliver the same upon the receipt of such security and/or indemnity as the Trustee and the Company may require. No service charge shall be imposed by the Company, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company and the Trustee may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase or redemption or is about to be converted in accordance with Article 13 (Conversion of Notes) shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of, or convert or authorize the conversion of, the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company and to the Trustee such security and/or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company, and the Trustee evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.

 

Every substitute Note issued pursuant to the provisions of this Section 2.06 (Mutilated, Destroyed, Lost or Stolen Notes) by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment or conversion or repurchase or redemption of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment or redemption or conversion of negotiable instruments or other securities without their surrender.

 

Section 2.07           Temporary Notes. Pending the preparation of Physical Notes, the Company may execute and the Note Registrar shall, upon receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the

 

 27 

 

 

Company and authenticated by the Note Registrar upon the same conditions and in substantially the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the Note Registrar Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 (Maintenance of Office or Agency) and the Note Registrar shall, upon receipt of a Company Order, authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and delivered hereunder.

 

Section 2.08           Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes surrendered for the purpose of payment, repurchase, redemption, registration of transfer or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates), to be delivered and surrendered to the Trustee for cancellation. All Notes delivered to the Trustee shall be canceled promptly by it, and, except in the case of Notes surrendered for registration of transfer or exchange, no Notes shall be authenticated in exchange thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall cancel such Notes in accordance with its customary procedures and, after such cancellation, shall deliver a certificate of such cancellation to the Company, at the Company’s written request in a Company Order.

 

Section 2.09            ISIN and Common Code Numbers. The Company in issuing the Notes may use “ISIN” and “Common Code” numbers (if then generally in use), and, if so, the Trustee shall use “ISIN” and “Common Code” numbers in all notices issued to Holders as a convenience to such Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the “ISIN” and “Common Code” numbers.

 

Section 2.10           Repurchases. The Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase the Notes in the open market or otherwise, whether by the Company or through its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements. The Company shall cause any Notes so repurchased to be surrendered to the Trustee for cancellation in accordance with Section 2.08 (Cancellation of Notes Paid, Converted, Etc) and upon receipt of a Company Order, the Trustee shall cancel all Notes so surrendered and such Notes shall no longer be considered outstanding under this Indenture upon their repurchase. The Company may also enter into cash-settled swaps or other derivatives with respect to the Notes. For the avoidance of doubt, any Notes underlying such cash-settled swaps or other derivatives shall not be required to be surrendered to the Trustee for cancellation in accordance with Section 2.08 (Cancellation of Notes Paid, Converted, Etc) and will continue to be considered outstanding for purposes of this Indenture, subject to the provisions of Section 8.04 (Company-Owned Notes Disregarded).

 

 28 

 

 

ARTICLE 3
SATISFACTION AND DISCHARGE

 

Section 3.01           Satisfaction and Discharge. This Indenture shall, upon request of the Company contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.06 (Mutilated, Destroyed, Lost or Stolen Notes) and (y) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.04(d) (Provisions as to Paying Agent)) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited cash with the Trustee or delivered ADSs to Holders (solely to satisfy the Company’s Conversion Obligation, if applicable), as applicable, after the Notes have become due and payable, whether on the Maturity Date, the Repurchase Date, any Fundamental Change Repurchase Date, upon Tax Redemption or conversion or otherwise, sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture by the Company (including, without limitation, sums due to the Trustee with respect to the Notes); and (b) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 (Compensation and Expenses of Trustee) shall survive.

 

ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY

 

Section 4.01           Payment of Principal and Interest. The Company covenants and agrees that it will cause to be paid the principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes.

 

Section 4.02           Maintenance of Office or Agency. The Company will maintain an office or agency (which will be the Principal Office initially) where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made at the Principal Office; provided, however, the legal service of process against the Company shall in no circumstances be made at an office of the Trustee.

 

The Company may also from time to time designate as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such

 

 29 

 

 

purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.

 

The Company has initially appointed The Bank of New York Mellon, London Branch as the Paying and Conversion Agent and The Bank of New York Mellon SA/NV, Dublin Branch as the Registrar and the Transfer Agent as listed in Exhibit C hereof.

 

Section 4.03          Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.09 (Resignation or Removal of Trustee), a Trustee, so that there shall at all times be a Trustee hereunder.

 

Section 4.04          Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:

 

(i)            that it will hold all sums held by it as such agent for the payment of the principal (including Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes for the benefit of the Holders of the Notes;

 

(ii)           that it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due and payable; and

 

(iii)          that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held.

 

The Company shall, on or before each due date of the principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action; provided that such deposit must be received by the Paying Agent by 10:00 a.m., London time, on the Business Day immediately preceding the relevant due date. The Paying Agent shall not be bound to make any payment until it has received, in immediately available and cleared funds, an amount which shall be sufficient to pay, as applicable, the aggregate amount of principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when such principal or interest shall become due and payable. The Paying Agent shall not be responsible or liable for any delay in making the payment if it does not receive funds

 

 30 

 

 

before 10:00 a.m. London time on the payment date. The Company shall procure that, before 10:00 a.m., London time, on the second Business Day before each payment date, the bank effecting payment for it has confirmed by facsimile to the Paying Agent the payment instructions relating to such payment.

 

(b)            If the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and payable. Upon an Event of Default under Section 6.01(i) or Section 6.01(j), the Trustee shall automatically become the Paying Agent.

 

(c)            Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held by the Company in trust or by any Paying Agent as required by this Section 4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.

 

(d)            Subject to applicable abandoned property law and the Trustee’s and the Paying Agent’s customary procedures, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, any Note and remaining unclaimed for two years after such principal (including consideration upon conversion, the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) or interest has become due and payable shall be paid or delivered, as the case may be, to the Company on request of the Company contained in an Officers’ Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such money, and all liability of the Company as Trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment or delivery, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30

 

 31 

 

 

days from the date of such publication, any unclaimed balance of such money then remaining will be repaid or delivered to the Company.

 

Section 4.05           Existence. Subject to Article 11 (Consolidation, Merger, Sale, Conveyance and Lease), the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. The Company shall promptly provide the Trustee with written notice of any change to its name, jurisdiction of incorporation or change to its corporate organization.

 

Section 4.06           [Reserved]

 

Section 4.07           Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including, if applicable, the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price), premium, if any, payments of interest, including any additional interest and payments of cash and/or deliveries of Conversion Securities or any other consideration due on a conversion of a Note (together with payment of cash in lieu of any fractional Conversion Securities or other consideration) upon conversion of the Notes, shall be made without withholding, deduction or reduction for any other collection at source for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied (including any penalties and interest related thereto) (the “Applicable Taxes”), unless such withholding, deduction or reduction is required by law or by other regulation or governmental policy having the force of law (including an official interpretation or application of such laws or regulations by any legislative body, court, governmental agency, taxing authority or regulatory authority) (“Applicable Tax Law”). In the event that any such withholding or deduction is required by or within (x) the Cayman Islands or the PRC (or, in each case, any political subdivision or taxing authority thereof or therein), (y) any jurisdiction in which the Company or any successor are, for tax purposes, incorporated, organized or resident or doing business (or any political subdivision or taxing authority thereof or therein) or (z) any jurisdiction from or through which payment is made or deemed made (or any political subdivision or taxing authority thereof or therein) (each of (x), (y) and (z), as applicable, a “Relevant Taxing Jurisdiction”), the Company shall pay or deliver to the Holder of each Note such additional amounts of cash, Conversion Securities or other consideration, as applicable (the “Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any Applicable Taxes on the additional amounts) will equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no additional amounts will be payable:

 

(i)            for or on account of:

 

(A)            any Applicable Taxes that would not have been imposed but for:

 

(1)            the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely acquiring or

 

 32 

 

 

holding such Note, receiving Conversion Securities (together with payment of cash for any fractional Conversion Securities) or other consideration upon conversion of such Note or the receipt of payments or the exercise or enforcement of rights thereunder, including such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;

 

(2)            the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), premium, if any, and interest, including any additional interest on, such Note or the delivery of Conversion Securities (together with payment of cash in lieu of any fractional Conversion Securities) upon conversion of such Note became due and payable pursuant to the terms thereof or was made or duly provided for (except to the extent that the Holder or beneficial owner of such Note would have been entitled to Additional Amounts had such Note been presented for payment on the last day of such 30-day period); or

 

(3)            the failure of the Holder or beneficial owner to comply with a timely written request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, in each case, to the extent such Holder or beneficial owner is legally entitled to, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner; provided that, in the case of Applicable Taxes that are value-added taxes or other local levies imposed by the PRC, the provision of any certification, information, documents or other evidence described in this clause (i)(A)(3) would not be materially more onerous, in form, in procedure, or in the substance of information disclosed, to a holder or a beneficial owner than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service

 

 33 

 

 

Forms W-8BEN, W-8BEN-E and W-9, or any successor forms), and reasonable procedure for the collection of such documentation has been implemented and is in effect at the time that such written request is received;

 

(B)            any estate, inheritance, gift, sale, personal property or similar Applicable Taxes;

 

(C)            any Applicable Taxes that are payable otherwise than by withholding, deduction from payments under or with respect to the Notes;

 

(D)            any Applicable Taxes required to be withheld or deducted under Sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) (or any amended or successor versions of such Sections that is substantively comparable and not materially more onerous to comply with) (“FATCA”), any regulations or other official guidance thereunder, any intergovernmental agreement or agreement pursuant to Section 1471(b)(1)  of the Code entered into in connection with FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement; or

 

(E)            any combination of Applicable Taxes referred to in the preceding clauses (A), (B), (C) or (D); or

 

(ii)         with respect to any payment of the principal of (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), premium, if any, and interest on, such Note to a Holder, if the Holder is a fiduciary, partnership or Person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.

 

In addition to the foregoing, the Company will also pay and indemnify the Holder of the Notes and the beneficial owner for any present or future stamp, issue, registration, value added, court or documentary taxes, or any other excise or property taxes, charges or similar levies or taxes (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Relevant Taxing Jurisdiction (and in the case of enforcement, any jurisdiction) on the execution, delivery, registration or enforcement of any of the Notes, this Indenture or any other document or instrument referred to therein, or the receipt of payments with respect thereto (including the receipt of Conversion Securities (together with payment of cash for any fractional Conversion Securities) or other consideration due upon conversion). Any such payments and indemnities shall be treated as Additional Amounts payable pursuant to Applicable Tax Law for purposes of Article 16 (Redemption Only for Taxation Reasons) hereof.

 

 34 

 

 

If the Company becomes obligated to pay Additional Amounts with respect to any payment or delivery under or with respect to the Notes, the Company will deliver to the Trustee and the Paying Agent (if other than the Trustee) on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company will notify the Trustee and the Paying Agent promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent or the Conversion Agent, as the case may be, to pay Additional Amounts to Holders on the relevant payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and the Paying Agent with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.

 

The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. Upon request, the Company will provide to the Trustee an official receipt or, if official receipts are not reasonably obtainable, such other documentation that provides reasonable evidence of the payment of any Applicable Taxes so deducted or withheld. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee to the Holders.

 

(b)            Any reference in this Indenture or the Notes in any context to the payment of cash and/or the delivery of Conversion Securities (together with payments of cash for any fractional Conversion Securities) or other consideration upon conversion of the Notes or the payment of principal of (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), any premium or interest including any additional interest on, any Note or any other amount payable with respect to such Note, shall be deemed to include any payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

(c)            The foregoing obligations shall survive termination, defeasance or discharge of this Indenture or any transfer by a Holder or a beneficial owner of its Notes and will apply mutatis mutandis to any jurisdiction in which any Successor Company is then, for tax purposes, incorporated, organized or resident or doing business (or any political subdivision or taxing authority thereof or therein) or any jurisdiction from or through which payment under or with respect to the Notes is made or deemed made by or on behalf of such Successor Company (or any political subdivision or taxing authority thereof or therein).

 

(d)            Notwithstanding anything to the contrary herein, the Company, the Trustee and the Paying Agent shall be entitled to make any withholding or deduction pursuant to FATCA.

 

Section 4.08            Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner

 

 35 

 

 

whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 4.09           Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2022) an Officers’ Certificate stating that a review has been conducted of the Company’s activities under this Indenture and whether the Company has fulfilled its obligations hereunder, and whether the signers thereof have knowledge of any Default by the Company that occurred during the previous year and, if so, specifying each such Default and the nature thereof.

 

In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event within 30 days after the Company becomes aware of the occurrence of any Default if such Default is then continuing, an Officers’ Certificate setting forth the details of such Default, its status and the action that the Company is taking or proposing to take in respect thereof. The Trustee shall have no responsibility to take any steps to ascertain whether any Event of Default or Default has occurred, and until (i) a Responsible Officer of the Trustee has received an Officers’ Certificate regarding such an occurrence, or (ii) the Trustee has received written notice at the Corporate Trust Office from the Holders of at least 25% in aggregate principal amount of the Notes then outstanding regarding such an occurrence, the Trustee is entitled to assume, without liability, that no Event of Default or Default has occurred.

 

Section 4.10           Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

 

ARTICLE 5
LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE

 

Section 5.01           Lists of Holders. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than 15 days after each January 31 and July 31 but in any event at least three Business Days before January 31 and July 31 in each year beginning with January 31, 2023 and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.

 

 36 

 

 

Section 5.02           Preservation and Disclosure of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 (Lists of Holders) or maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 (Lists of Holders) upon receipt of a new list so furnished.

 

ARTICLE 6
DEFAULTS AND REMEDIES

 

Section 6.01           Events of Default. The following events shall be “Events of Default” with respect to the Notes:

 

(a)            failure by the Company to pay any installment of interest or Additional Amounts, if any, on any of the Notes, when due and payable, which failure continues for 30 days after the date when due;

 

(b)            failure by the Company to pay when due the principal, the Tax Redemption Price, the Repurchase Price or any Fundamental Change Repurchase Price of any Note, in each case, when the same becomes due and payable;

 

(c)            failure by the Company to deliver when due the consideration (including any Conversion Securities and/or Reference Property, as the case may be) deliverable upon conversion of any Notes and such failure continues for a period of four Business Days;

 

(d)            failure by the Company to issue a Tax Redemption Notice in accordance with Section 16.02 (Notice of Tax Redemption), the Company Notice pursuant to Section 15.01(a) (Repurchase at Option of Holders), a Fundamental Change Company Notice in accordance with Section 15.02(b) (Repurchase at Option of Holders Upon a Fundamental Change), a Forced Conversion Notice in accordance with Section 13.03(a) (Forced Conversion) or notice of a Make-Whole Fundamental Change or a Tax Redemption in accordance with Section 13.04(a) (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption), in each case, when due, and such failure continues for a period of five Business Days;

 

(e)            failure by the Company to comply with its obligations under Article 11 (Consolidation, Merger, Sale, Conveyance and Lease);

 

(f)            failure by the Company for 60 days after receipt of a written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in the aggregate principal amount of the Notes then outstanding to perform or observe (or obtain a waiver with respect to) any of its terms, covenants or agreements contained in the Notes or this Indenture not otherwise provided for in this Section 6.01 (Events of Default);

 

 37 

 

 

(g)            default by the Company or any Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of US$40 million (or the foreign currency equivalent thereof) in the aggregate of the Company and/or any such Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such indebtedness when due and payable at its stated maturity, upon redemption, upon required repurchase, upon declaration of acceleration or otherwise, in each case, after the expiration of any applicable grace period, if such default is not cured or waived, or such acceleration is not rescinded, within 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by holders of at least 25% in the aggregate principal amount of the Notes then outstanding, in accordance with this Indenture;

 

(h)            a final judgment for the payment of US$40 million (or the foreign currency equivalent thereof) or more (excluding any amounts covered by insurance or bond) rendered against the Company or any Subsidiary of the Company by a court of competent jurisdiction, which judgment is not discharged, bonded, stayed, vacated, paid or otherwise satisfied within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;

 

(i)            the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding or procedure (including, without limitation, the passing of a resolution for its voluntary liquidation) seeking liquidation, reorganization or other relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or

 

(j)            an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or any substantial part of its property.

 

Section 6.02            Acceleration; Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its

 

 38 

 

 

Significant Subsidiaries), unless the principal of all of the Notes shall have already become due and payable, the Trustee may by notice in writing to the Company, or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined subject to Section 8.04 (Company-Owned Notes Disregarded), by notice in writing to the Company may, and the Trustee at the request of such Holders shall (subject to being indemnified and/or secured and/or pre-funded to its satisfaction), declare up to 100% of the principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable, notwithstanding anything contained in this Indenture or in the Notes to the contrary. If an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its Significant Subsidiaries occurs and is continuing, 100% of the principal of, and accrued and unpaid interest on, all Notes shall become and shall automatically be immediately due and payable without any action on the part of the Trustee. If an Event of Default occurs and is continuing, all agents of the Company appointed under this Indenture will be required to act on the direction of the Trustee.

 

The immediately preceding paragraph, however, is subject to the conditions that, if at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest on overdue installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under applicable law, and on such principal at the rate per annum borne by the Notes plus 1.00%) and amounts due to the Trustee pursuant to Section 7.06 (Compensation and Expenses of Trustee), and if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2) all payments to the Trustee have been made, and (3) any and all existing Events of Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest on Notes that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09 (Direction of Proceedings and Waiver of Defaults by Majority of Holders), then and in every such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal of, or accrued and unpaid interest on, any Notes, (ii) a failure to pay the Tax Redemption Price, the Repurchase Price or any Fundamental Change Repurchase Price of any Note or (iii) a failure to deliver the consideration (including any Conversion Securities and/or Reference Property, as the case may be) due upon conversion of the Notes.

 

Section 6.03           [Reserved].

 

 39 

 

 

Section 6.04           Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 (Event of Default) shall have occurred, the Company shall, upon demand of the Trustee or at the request of Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined subject to Section 8.04 (Company-Owned Notes Disregarded) and subject to indemnity and/or security and/or pre-funding satisfactory to the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the rate per annum borne by the Notes at such time plus 1.00%, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06 (Compensation and Expenses of Trustee). If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.

 

In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.04 (Payments of Notes on Default; Suit Therefor), shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.06 (Compensation and Expenses of Trustee); and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06 (Compensation and Expenses of Trustee), incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any

 

 40 

 

 

and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name or as a trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes.

 

In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.

 

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09 (Direction of Proceedings and Waiver of Defaults by Majority of Holders) or any rescission and annulment pursuant to Section 6.02 (Acceleration; Rescission and Annulment) or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders, and the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders, and the Trustee shall continue as though no such proceeding had been instituted.

 

Section 6.05           Application of Monies or Property Collected by Trustee. Any monies or property collected by the Trustee pursuant to this Article 6 (Defaults and Remedies) or otherwise after an Event of Default has occurred and is continuing with respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies or property, upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

First, to the payment of all amounts due to the Trustee, including its agents and counsel, under Section 7.06 (Compensation and Expenses of Trustee) and any payments due to the Paying Agent, the Conversion Agent and the Note Registrar;

 

Second, in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the extent that such interest has

 

 41 

 

 

been collected by the Trustee) upon such overdue payments at the rate per annum borne by the Notes at such time plus 1.00%, such payments to be made ratably to the Persons entitled thereto;

 

Third, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the payment of the Tax Redemption Price, the Repurchase Price or Fundamental Change Repurchase Price and any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate per annum borne by the Notes at such time plus 1.00%, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Tax Redemption Price, the Repurchase Price or Fundamental Change Repurchase Price) and interest without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Repurchase Price, the Fundamental Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and

 

Fourth, to the payment of the remainder, if any, to the Company or as a court of competent jurisdiction shall direct.

 

Section 6.06           Proceedings by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the Tax Redemption Price, the Repurchase Price or Fundamental Change Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:

 

(a)            such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;

 

(b)            Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;

 

(c)            such Holders shall have offered to the Trustee such security and/or indemnity and/or pre-funding satisfactory to it against any loss, liability or expense to be incurred therein or thereby;

 

(d)            the Trustee for 60 days after its receipt of such notice, request and offer of security and/or indemnity and/or pre-funding, shall have neglected or refused to institute any such action, suit or proceeding; and

 

 42 

 

 

(e)            no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09 (Direction of Proceedings and Waiver of Defaults by Majority of Holders),

 

it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and enforcement of this Section 6.06 (Proceedings by Holders), each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be impaired or affected without the consent of such Holder.

 

Section 6.07           Proceedings by Trustee. In case of an Event of Default, the Trustee may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 6.08           Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 6.06 (Proceedings by Holders), all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06 (Proceedings by Holders), every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.

 

 43 

 

 

Section 6.09           Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal amount of the Notes at the time outstanding determined subject to Section 8.04 (Company-Owned Notes Disregarded) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to Notes; provided, however, that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability, or if it is not provided with security and/or indemnity and/or pre-funding to its satisfaction. Prior to taking any action under this Indenture, the Trustee will be entitled to security and/or indemnification and/or pre-funding satisfactory to it in its sole discretion against all losses, liabilities and expenses caused by taking or not taking such action. In addition, the Trustee will not be required to expend its own funds under any circumstances. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined subject to Section 8.04 (Company-Owned Notes Disregarded) may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest on, or the principal (including, if applicable, the Tax Redemption Price, the Repurchase Price or Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.02 (Acceleration; Rescission and Annulment), (ii) a failure by the Company to pay or deliver, or cause to be delivered, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 (Supplemental Indentures) cannot be modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09 (Direction of Proceedings and Waiver of Defaults by Majority of Holders), said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.

 

Section 6.10           Notice of Defaults and Events of Default. If a Default or Event of Default occurs and is continuing and a Responsible Officer of the Trustee is notified in writing, the Trustee shall, within 90 days after a Responsible Officer of the Trustee has obtained such knowledge of the occurrence and continuance of such Default or Event of Default, send to all Holders (at the Company’s expense) as the names and addresses of such Holders appear upon the Note Register, notice of all such Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided that the Trustee shall not be deemed to have knowledge of any occurrence of a Default or Event of Default unless a Responsible Officer has received written notice at the Corporate Trust Office from the Company or a Holder. Except in the case of a Default in the payment of the principal of (including the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding

 

 44 

 

 

 

such notice if and so long as a Responsible Officer of the Trustee (in its sole discretion) in good faith determines that the withholding of such notice is in the interests of the Holders.

 

Section 6.11           Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted by or against the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined subject to Section 8.04 (Company-Owned Notes Disregarded), or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest on any Note (including, but not limited to, the Tax Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note in accordance with the provisions of Article 13 (Conversion of Notes).

 

ARTICLE 7
CONCERNING THE TRUSTEE

 

Section 7.01            Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default has occurred that has not been cured or waived, of which a Responsible Officer of the Trustee has received actual written notice pursuant to Section 7.02(j) (Reliance on Documents, Opinions, Etc) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity and/or security and/or pre-funding satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct as proven in a final decision in a court of competent jurisdiction, except that:

 

(a)            prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:

 

(i)            the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable

 

 45 

 

 

except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii)           in the absence of gross negligence and willful misconduct on the part of the Trustee as proven in a final decision in a court of competent jurisdiction, the Trustee may conclusively and without liability rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);

 

(b)            the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved in a final decision in a court of competent jurisdiction that the Trustee was grossly negligent in ascertaining the pertinent facts;

 

(c)            the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined subject to Section 8.04 (Company-Owned Notes Disregarded) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;

 

(d)            whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section and Section 7.02 (Reliance on Documents, Opinions, Etc.);

 

(e)            the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to the Notes;

 

(f)            if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively and without liability rely on its failure to receive such notice as reason to act as if no such event occurred;

 

(g)            in the event that the Trustee is also acting as Note Registrar, Paying Agent or Conversion Agent, the rights, privileges, immunities and protections, including without limitation, its right to be indemnified, afforded to the Trustee pursuant to this

 

 46 

 

 

Article 7 shall also be afforded to such Note Registrar, Paying Agent or Conversion Agent;

 

(h)           the Trustee shall have no duty to inquire, no duty to determine and no duty to monitor as to the performance of the Company’s covenants in this Indenture or the financial performance of the Company; the Trustee shall be entitled to assume, until it has received written notice in accordance with this Indenture, that the Company is properly performing its duties hereunder;

 

(i)            the Trustee shall be under no obligation to enforce any of the provisions of this Indenture unless it is instructed by Holders of at least 25% of the aggregate principal amount of outstanding Notes determined subject to Section 8.04 (Company-Owned Notes Disregarded) and is provided with security and/or indemnity and/or pre-funding satisfactory to it; and

 

(j)            the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity and/or security and/or pre-funding satisfactory to it against any costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.

 

None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers.

 

Section 7.02            Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01 (Duties and Responsibilities of Trustee):

 

(a)            the Trustee may conclusively and without liability rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, Note, coupon or other paper or document (whether in its original or facsimile form) believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;

 

(b)            any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary of the Company;

 

(c)            the Trustee may consult with counsel and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance upon such advice or Opinion of Counsel;

 

(d)            the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts

 

 47 

 

 

or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;

 

(e)            the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, delegates, custodians, nominees or attorneys and the Trustee shall not be responsible for the supervision, or for any misconduct or negligence on the part of any agent, delegate, representative, custodian, nominee or attorney appointed by it with due care hereunder;

 

(f)            the permissive rights of the Trustee enumerated herein shall not be construed as duties;

 

(g)            under no circumstances and notwithstanding any contrary provision included herein, neither the Trustee, the Paying Agent, the Conversion Agent nor the Note Registrar shall be responsible or liable for special, indirect, punitive, or consequential damages or loss of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether any of them have been advised of the likelihood of such loss or damage and regardless of the form of action; this provision shall remain in full force and effect notwithstanding the discharge of the Notes, the termination of this Indenture or the resignation, replacement or removal of the Trustee, the Paying Agent, the Conversion Agent and the Note Registrar;

 

(h)            the Trustee, the Paying Agent, the Conversion Agent and the Note Registrar may refrain from taking any action in any jurisdiction if the taking of such action in that jurisdiction would, in its opinion based upon legal advice in the relevant jurisdiction, be contrary to any law of that jurisdiction or, to the extent applicable, of New York; furthermore, the Trustee may also refrain from taking such action if it would otherwise render it liable to any Person in that jurisdiction or New York or if, in its opinion based on such legal advice, it would not have the power to do the relevant thing in that jurisdiction by virtue of any applicable law in that jurisdiction or in New York or if it is determined by any court or other competent authority in that jurisdiction that it does not have such power;

 

(i)            the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;

 

(j)            the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Event of Default described in Section 6.01(a), Section 6.01(b) or Section 6.01(c) or (ii) any Event of Default of which a Responsible Officer of the Trustee shall have received at the Corporate Trust Office written notification thereof from the Company or a Holder, and such notice references the Notes of this Indenture;

 

(k)           the Trustee may request that the Company deliver Officers’ Certificates setting forth the names of individuals and their titles and specimen signatures of officers authorized at such time to take specified actions pursuant to this Indenture, which

 

 48 

 

 

Officers’ Certificates may be signed by any Person authorized to sign an Officers’ Certificate, as the case may be, including any Person specified as so authorized in any such certificate previously delivered and not superseded;

 

(l)            the Trustee shall not be responsible or liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers;

 

(m)           the Trustee shall not be responsible or liable for any action taken or omitted by it in good faith at the direction, in accordance with Section 6.09 (Direction of Proceedings and Waiver of Defaults by Majority of Holders), of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding determined subject to Section 8.04 (Company-Owned Notes Disregarded) as to the time, method and place of conducting any proceeding for any remedy available to the Trustee or the exercising of any power conferred by this Indenture;

 

(n)            the Trustee shall not be responsible for any inaccuracy in the information obtained from the Company or for any inaccuracy or omission in the records which may result from such information or any failure by the Trustee to perform its duties as set forth herein as a result of any inaccuracy or incompleteness; and

 

(o)            neither the Trustee nor any agent thereof shall have any responsibility or liability for any actions taken or not taken by Euroclear and/or Clearstream.

 

Section 7.03            No Responsibility for Recitals, Etc. The recitals, statements, warranties and representations contained herein and in the Notes (except in the Note Registrar’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the accuracy or correctness of the same or for any failure by the Company or any other party to disclose events that may have occurred and may affect the significance or accuracy of such information, or the execution, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Note Registrar in conformity with the provisions of this Indenture. Notwithstanding the generality of the foregoing, each Holder shall be solely responsible for making its own independent appraisal of, and investigation into, the financial condition, creditworthiness, condition, affairs, status and nature of the Company, and the Trustee shall not at any time have any responsibility for the same and each Holder shall not rely on the Trustee in respect thereof.

 

Section 7.04            Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its individual or any other capacity, may engage in business and contractual relationships with the Company or its Affiliates and may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent or Note Registrar, and nothing herein shall obligate any of them to account for any profits earned from any business or transactional relationship.

 

 49 

 

 

Section 7.05           Monies to Be Held in Trust. All monies received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money held by the Trustee in trust or by the Paying Agent hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor the Paying Agent shall be under any liability for interest on any money received by it hereunder.

 

Section 7.06           Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a Trustee of an express trust) as mutually agreed to in writing between the Trustee and the Company (which sum shall be paid free and clear of deduction and withholding on account of taxation, set off and counterclaim), and the Company will pay or reimburse the Trustee upon its request for all expenses, disbursements and advances properly incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder (including the properly incurred compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its gross negligence or willful misconduct as proven in a final decision in a court of competent jurisdiction. The Company also covenants to indemnify the Trustee (which for the purposes of this Section 7.06 shall be deemed to include its officers, directors, agents and employees) in any capacity under this Indenture (including, without limitation, as Note Registrar, Conversion Agent and Paying Agent) and any other document or transaction entered into in connection herewith, and to hold it harmless against, any loss, claim, damage, liability or expense (whether arising from third party claims or claims by or against the Company) incurred without gross negligence or willful misconduct on the part of the Trustee, its officers, directors, agents or employees, as the case may be as proven in a final decision in a court of competent jurisdiction, and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim of liability in the premises or enforcing this indemnity. The obligations of the Company under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.05 (Application of Monies or Property Collected by Trustee), funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company. The indemnity under this Section 7.06 is payable upon demand by the Trustee. The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of the Notes, the termination of this Indenture and the resignation or removal or the Trustee. The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee. Subject to Section 7.02(e) (Reliance on Documents, Opinions, Etc), any negligence or misconduct of any agent, delegate, attorney or representative, in each case, of the Trustee, shall not affect indemnification of the Trustee.

 

Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents incur expenses or render services after an Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the expenses and the compensation for the services are

 

 50 

 

 

intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.

 

Section 7.07            Officers’ Certificate as Evidence. Except as otherwise provided in Section 7.01 (Duties and Responsibilities of Trustee), whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such Officers’ Certificate shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.

 

Section 7.08            Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least US$50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 7.

 

Section 7.09            Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving 60 days written notice of such resignation to the Company and by sending notice thereof to the Holders at their addresses as they shall appear on the Note Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 days after the sending of such notice of resignation to the Holders, the resigning Trustee may appoint a successor trustee on behalf of and at the expense of the Company or it may, upon ten Business Days’ notice to the Company and the Holders, at the expense of the Company petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months may, subject to the provisions of Section 6.11 (Undertaking to Pay Costs), on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

(b)            In case at any time any of the following shall occur:

 

(i)            the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 (Eligibility of Trustee) and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(ii)           the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be

 

 51 

 

 

appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11 (Undertaking to Pay Costs), any Holder who has been a bona fide holder of a Note or Notes for at least six months may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

(c)            The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined subject to Section 8.04 (Company-Owned Notes Disregarded), may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) (Resignation or Removal of Trustee) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.

 

(d)            Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09 (Resignation or Removal of Trustee) shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10 (Acceptance by Successor Trustee).

 

Section 7.10            Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 (Resignation or Removal of Trustee) shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the Trustee ceasing to act shall, upon payment of any amounts then due to it pursuant to the provisions of Section 7.06 (Compensation and Expenses of Trustee), execute and deliver an instrument transferring to such successor trustee all the rights and powers of the Trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by such Trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due to it pursuant to the provisions of Section 7.06 (Compensation and Expenses of Trustee).

 

 52 

 

 

No successor trustee shall accept appointment as provided in this Section 7.10 (Acceptance by Successor Trustee) unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 7.08 (Eligibility of Trustee).

 

Upon acceptance of appointment by a successor trustee as provided in this Section 7.10 (Acceptance by Successor Trustee), each of the Company and the successor trustee, at the written direction and at the expense of the Company shall send or cause to be sent notice of the succession of such Trustee hereunder to the Holders at their addresses as they shall appear on the Note Register. If the Company fails to send such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be sent at the expense of the Company.

 

Section 7.11            Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08 (Eligibility of Trustee).

 

Section 7.12            Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Officer that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such Officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.

 

ARTICLE 8
CONCERNING THE HOLDERS

 

Section 8.01            Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or

 

 53 

 

 

proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 9 (Holders’ Meetings), or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may fix, but shall not be required to, in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.

 

Section 8.02            Proof of Execution by Holders. Subject to the provisions of Section 7.01 (Duties and Responsibilities of Trustee), Section 7.02 (Reliance on Documents, Opinions, Etc.) and Section 9.05 (Regulations), proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06 (Voting).

 

Section 8.03            Who Are Deemed Absolute Owners. The Company, the Trustee, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal of and (subject to Section 2.03 (Date and Denomination of Notes; Payments of Interest and Defaulted Amounts)) accrued and unpaid interest on such Note, for the purpose of conversion of such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums or ADSs so paid or delivered, effectual to satisfy and discharge the liability for monies payable or ADSs deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of Default, any Holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Common Depositary or any other Person, such Holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.

 

Section 8.04            Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company, by any Subsidiary or by any Affiliate of the Company or any Subsidiary shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes in respect of which a Responsible Officer is notified in writing shall be so disregarded. Notwithstanding the foregoing, Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 (Company-Owned Notes Disregarded) if the pledgee shall establish its right to so act with

 

 54 

 

 

respect to such Notes and that the pledgee is not the Company, a Subsidiary or an Affiliate of the Company or a Subsidiary. Within five days of acquisition of the Notes by any of the above described Persons or at the request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01 (Duties and Responsibilities of Trustee), the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.

 

Section 8.05            Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01 (Action by Holders), of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02 (Proof of Execution by Holders), revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.

 

ARTICLE 9
HOLDERS’ MEETINGS

 

Section 9.01           Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following purposes:

 

(a)            to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6 (Defaults and Remedies);

 

(b)            to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7 (Concerning the Trustee);

 

(c)            to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02 (Supplemental Indentures with Consent of Holders); or

 

(d)            to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law.

 

Section 9.02            Call of Meetings by Trustee. The Trustee may (in its sole discretion and without obligation) at any time call a meeting of Holders to take any action specified in Section 9.01 (Purpose of Meetings), to be held at such time and at such place as the Trustee shall

 

 55 

 

 

determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01 (Action by Holders), shall be sent to Holders of such Notes at their addresses as they shall appear on the Note Register. Such notice shall also be sent to the Company. Such notices shall be sent not less than 20 nor more than 90 days prior to the date fixed for the meeting.

 

Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.

 

Section 9.03            Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have sent the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01 (Purpose of Meetings), by sending notice thereof as provided in Section 9.02 (Call of Meetings by Trustee).

 

Section 9.04            Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

 

Section 9.05            Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.

 

The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03 (Call of Meetings by Company or Holders), in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Notes represented at the meeting and entitled to vote at the meeting.

 

Subject to the provisions of Section 8.04 (Company-Owned Notes Disregarded), at any meeting of Holders each Holder or proxy-holder shall be entitled to one vote for each US$1,000

 

 56 

 

 

principal amount of Notes held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 (Call of Meetings by Trustee) or Section 9.03(Call of Meetings by Company or Holders) may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.

 

Minutes shall be made of all resolutions and proceedings at every meeting and, if purporting to be signed by the chairman of that meeting or of the next succeeding meeting of Holders of the Notes, shall be conclusive evidence of the matters in them. Until the contrary is proved every meeting for which minutes have been so made and signed shall be deemed to have been duly convened and held and all resolutions passed or proceedings transacted at it to have been duly passed and transacted.

 

Section 9.06            Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was sent as provided in Section 9.02 (Call of Meetings by Trustee). The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

Section 9.07            No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.

 

 57 

 

 

ARTICLE 10
SUPPLEMENTAL INDENTURES

 

Section 10.01         Supplemental Indentures Without Consent of Holders. The Company, when authorized by the resolutions of the Board of Directors, and the Trustee, at the Company’s expense and direction, may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:

 

(a)            to cure any ambiguity, omission, inconsistency or correct or supplement any defective provision contained in this Indenture or the Notes in a manner that does not adversely affect the rights of any Holder;

 

(b)            to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture and the Notes pursuant to Article 11 (Consolidation, Merger, Sale, Conveyance and Lease);

 

(c)            to add guarantees with respect to the Notes;

 

(d)            to otherwise secure the Notes;

 

(e)            to add to the covenants or Events of Defaults of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company;

 

(f)            upon the occurrence of any transaction or event described in Section 13.08(a) (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares), to

 

(i)            provide that the Notes are convertible into Reference Property, subject to Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares), and

 

(ii)            effect the related changes to the terms of the Notes described under Section 13.08(a), in each case, in accordance with Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares);

 

(g)            to evidence and provide for the assumption by a successor trustee of the obligations of the Trustee under this Indenture pursuant to Article 7 (Concerning the Trustee);

 

(h)            to effect any change to this Indenture in a manner necessary to comply with the procedures of Euroclear or Clearstream; or

 

(i)             to make any other changes to this Indenture that do not adversely affect the interests of any Holder.

 

Upon the written request of the Company, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not

 

 58 

 

 

be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02 (Supplemental Indentures with Consent of Holders).

 

Section 10.02         Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided in Article 8 (Concerning the Holders)) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 (Concerning the Holders) and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company, when authorized by the resolutions of the Board of Directors, and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:

 

(a)            change the percentage in aggregate principal amount of then outstanding Notes whose Holders must consent to a modification or amendment or to waive any past Default or Event of Default;

 

(b)            alter the manner of calculation or rate of accrual of interest on any Note or change the time of payment of any installment of interest on any Note;

 

(c)            reduce the principal amount with respect to any of the Notes or change the Maturity Date of any Note;

 

(d)            make any change that adversely affects the conversion rights of any Notes, including by modifying any of the notice provisions;

 

(e)            reduce the Tax Redemption Price, the Repurchase Price or the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;

 

(f)             make any Note payable in a currency or securities other than that stated in the Notes;

 

(g)            change the ranking of the Notes;

 

(h)            impair the right of any Holder to receive payment of principal and interest on such Holder’s Notes on or after the due dates therefor (including the Tax Redemption Price, the Repurchase Price, and the Fundamental Change Repurchase Price, if applicable) or to institute suit for the enforcement of any payment on or with respect to such Holder’s Note or with respect to the conversion of any Note; or

 

 59 

 

 

(i)            change the Company’s obligation to pay Additional Amounts on any Note;

 

(j)            change any terms and conditions in Article 15 (Repurchase of Notes at Option of Holders) or Article 16 (Redemption at the Option of the Company);

 

(k)            make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 (Acceleration; Rescission and Annulment) or Section 6.09 (Direction of Proceedings and Waiver of Defaults by Majority of Holders) or change the percentage in aggregate principal amount of outstanding Notes necessary to amend this Indenture under this Article 10 or in the waiver provisions in Section 6.02 (Acceleration; Rescission and Annulment) or Section 6.09 (Direction of Proceedings and Waiver of Defaults by Majority of Holders).

 

Upon the written request of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05 (Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee), the Trustee shall join with the Company in the execution of such supplemental indenture unless (i) the Trustee has not received an Officers’ Certificate and Opinion of Counsel as contemplated by Section 10.05 or (ii) such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the substance thereof. After any supplemental indenture becomes effective under Section 10.01 (Supplemental Indentures Without Consent of Holders) or this Section 10.02, the Company shall send or cause to be sent to the Holders a notice briefly describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of the supplemental indenture.

 

Section 10.03          Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

Section 10.04          Notation on Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s expense, bear a notation as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the

 

 60 

 

 

Company, authenticated by the Note Registrar upon receipt of a Company Order and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.

 

Section 10.05          Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In addition to the documents required by Section 17.06 (Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee), the Trustee shall receive an Officers’ Certificate and an Opinion of Counsel each stating and as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture and is not contrary to law and, with respect to such Opinion of Counsel, that such supplemental indenture is the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to customary exceptions.

 

ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

 

Section 11.01         Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 11.02 (Successor Corporation to Be Substituted), the Company shall not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to another Person other than to one or more of the wholly-owned Subsidiaries of the Company, unless:

 

(a)            the resulting, surviving or transferee Person or the Person which acquires by conveyance, transfer, lease or other disposition all or substantially all of the Company’s properties and assets (the “Successor Company”), if not the Company, shall be a corporation, company, limited liability company, partnership, trust or other business entity organized and existing under the laws of the United States of America, any State thereof, the District of Columbia, the Cayman Islands, the British Virgin Islands, Bermuda or Hong Kong, and the Successor Company (if not the Company) shall expressly assume, by a supplemental indenture all of the obligations of the Company under the Notes and this Indenture (including, for the avoidance of doubt, the obligation to pay Additional Amounts pursuant to Section 4.07 (Additional Amounts));

 

(b)            immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture;

 

(c)            the Company shall have undertaken commercially reasonable efforts to restructure the Notes so that, after any such transaction is given effect, any conversion of the Notes will be exempt from the registration requirements of the Securities Act pursuant to Section 3(a)(9) thereof; and

 

(d)            if, upon the occurrence of any such transaction, (x) the Notes would become convertible pursuant to the terms of this Indenture into securities issued by an issuer other than the Successor Company, and (y) the Successor Company is a wholly-owned Subsidiary of the issuer of such securities into which the Notes have become convertible, such other issuer shall fully and unconditionally guarantee on a senior basis the Successor Company’s obligations under this Indenture and the Notes.

 

 61 

 

 

For purposes of this Section 11.01 (Company May Consolidate, Etc. on Certain Terms), the sale, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets of the Company to another Person.

 

Section 11.02         Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer, lease or disposition and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes (including, for the avoidance of doubt, any Additional Amounts), the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes (including, for the avoidance of doubt, any Additional Amounts) and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the Company’s properties and assets, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part. Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Note Registrar shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company to the Note Registrar for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance, transfer or disposition (but not in the case of a lease), upon compliance with this Article 11(Consolidation, Merger, Sale, Conveyance and Lease) the Person named as the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11 (Consolidation, Merger, Sale, Conveyance and Lease)) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.

 

In case of any such consolidation, merger, sale, conveyance, transfer, lease or disposition, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.

 

Section 11.03         Opinion of Counsel to Be Given to Trustee. If the Company is not the Successor Company, no consolidation, merger, sale, conveyance, transfer, lease or other disposition shall be effective unless the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating and as conclusive evidence that any such

 

 62 

 

 

consolidation, merger, sale, conveyance, transfer, lease or disposition and any such assumption and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with the provisions of this Article 11, that all conditions precedent thereto have been satisfied and that the Notes and such supplemental indenture are the legal, valid and binding obligation of the Successor Company, enforceable against it in accordance with its terms, subject to customary exceptions.

 

ARTICLE 12
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS

 

Section 12.01          Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes.

 

ARTICLE 13
CONVERSION OF NOTES

 

Section 13.01         Conversion Privilege. Subject to and upon compliance with the provisions of this Article 13 (Conversion of Notes), each Holder shall have the right, at such Holder’s option, to convert all or any portion of the Notes held by it (if the portion to be converted is in denominations of US$200,000 principal amount and integral multiples of US$1,000 in excess thereof) at any time during the Conversion Period at the Conversion Rate (subject to, and in accordance with, the settlement provisions of Section 13.02 (Conversion Procedure; Settlement Upon Conversion), the “Conversion Obligation”). The right of a Holder to convert the Notes in accordance with the settlement provisions of Section 13.02 (Conversion Procedure; Settlement Upon Conversion) is called the “Conversion Right.”

 

The conversion price shall be US$24.50 (the “Conversion Price”) per ADS, representing an initial conversion rate of 40.8163 ADSs (subject to the adjustments as provided in this Article 13 (Conversion of Notes), the “Conversion Rate”) per US$1,000 principal amount of the Notes.

 

Subject to and upon compliance with the provisions of this Article 13 (Conversion of Notes), the Conversion Right attaching to any Notes may be exercised, at the option of the Holder thereof, at any time prior to the close of business of the third Scheduled Trading Day (or the fifth Scheduled Trading Day, if the converting Holder elects to receive Ordinary Shares in lieu of any ADSs under Section 13.02(j)(Conversion Procedure; Settlement Upon Conversion)) immediately preceding the Maturity Date (the “Conversion Period”).

 

 63 

 

 

Section 13.02         Conversion Procedure; Settlement Upon Conversion.

 

(a)            Subject to this Section 13.02, Section 13.04 (Increased Conversion Rate Applicable to Certain Notes delivered in connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption) and Section 13.07 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares), the Company shall cause to be delivered to the converting Holder, in respect of each US$1,000 principal amount of Notes being converted, a number of ADSs equal to the Conversion Rate (or Ordinary Shares, if the converting Holder elects to receive Ordinary Shares in lieu of any ADSs under Section 13.02(j)(Conversion Procedure; Settlement Upon Conversion)), together with a cash payment, if applicable, in lieu of any fractional Conversion Securities in accordance with Section 13.02(k) (Conversion Procedure; Settlement Upon Conversion), on the third Business Day (or the fifth Business Day, if the converting Holder elects to receive Ordinary Shares in lieu of any ADSs under Section 13.02(j)(Conversion Procedure; Settlement Upon Conversion)), immediately following the relevant Conversion Date.

 

(b)            Before any Holder shall be entitled to convert a Note as set forth above, such Holder shall:

 

(i)            in the case of a Global Note, (1) comply with the rules and procedures of Euroclear and/or Clearstream and the ADS Depositary in effect at that time to convert such Note (for the avoidance of doubt, including, in the case of a Restricted Security, delivering the notice included as Attachment 7 to the Form of Note attached hereto as Exhibit A), (2) manually sign and deliver a duly completed notice to the Conversion Agent as set forth in the Form of Conversion Notice (or a facsimile thereof) (a “Conversion Notice”) and, (3) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 13.02(h) (Conversion Procedure; Settlement Upon Conversion)), and

 

(ii)            in the case of a Physical Note (1) complete, manually sign and deliver a duly completed Conversion Notice, including, if applicable, such Holder’s election to receive Ordinary Shares in lieu of any ADSs deliverable upon conversion and, if it elects to receive the Ordinary Shares through CCASS after the restrictive legend on the Note has been removed, to be delivered to the designated Hong Kong stock account of such Holder in CCASS; (2) manually sign the Conversion Notice on the back of the Note; (3) deliver the duly completed Conversion Notice, which is irrevocable, to the Conversion Agent and the Company; (4) if required, furnish appropriate endorsements and transfer documents; (5) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled; and (6) if required, pay any applicable transfer or similar taxes as described immediately below.

 

The Company will pay any documentary, stamp, issue, transfer or similar tax due on the delivery of the ADSs upon conversion of the Notes (or the issuance of the Ordinary Shares underlying, or in lieu of, such ADSs), unless the tax is due because the Holder requests such ADSs (or the Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay the tax. The Company will also pay:

 

 64 

 

 

(i) the ADS Depositary’s fees for issuance of the ADSs, (ii) all other expenses arising from the issue and listing of Ordinary Shares to be delivered in lieu of ADSs upon conversion and all the charges of the Hong Kong share registrar in connection with this Indenture.

 

No Conversion Notice with respect to any Notes may be delivered, and no Notes may be surrendered for conversion, by a Holder thereof if such Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, in accordance with Section 15.01 (Repurchase at Option of Holders) or 15.03 (Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice), as the case may be. Any Conversion Notice shall be deposited in duplicate at the office of any Conversion Agent on any Business Day from 9:00 a.m. to 3:00 p.m. at the location of the Conversion Agent to which such Conversion Notice is delivered. Any Conversion Notice and any Physical Note (if issued) deposited outside the hours specified or on a day that is not a Business Day at the location of the Conversion Agent shall for all purposes be deemed to have been deposited with that Conversion Agent between 9:00 a.m. and 3:00 p.m. on the next Business Day.

 

If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.

 

(c)            A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. If any ADSs are due to a converting Holder, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, a book-entry transfer through The Depository Trust Company for the full number of whole ADSs to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation.

 

(d)            In case any Physical Note shall be surrendered for partial conversion, the Company shall execute and instruct the Note Registrar who shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.

 

(e)            [Reserved].

 

 65 

 

 

(f)             Except as provided in Section 13.05 (Adjustment of Conversion Rate), no adjustment shall be made for dividends on any ADSs delivered upon the conversion of any Note as provided in this Article 13 (Conversion of Notes).

 

(g)            Upon the conversion of an interest in a Global Note, the Trustee shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.

 

(h)            Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date but before the open of business on the Interest Payment Date corresponding to such Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. However, Notes surrendered for conversion during the period after the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by an amount of funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has delivered a Tax Redemption Notice pursuant to Article 16 (Redemption only for Taxation Reasons) and has specified therein a Tax Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the third Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion with respect to such Note. For the avoidance of doubt, Holders on the Regular Record Date immediately preceding the Maturity Date, any Fundamental Change Repurchase Date or Tax Redemption Date, in each case, will receive the full interest payment due on such Notes on the Maturity Date or other applicable Interest Payment Date in cash, regardless of whether such Notes have been converted following such Regular Record Date.

 

(i)            The Person in whose name any Conversion Securities shall be issuable upon conversion shall be treated as a holder of record of such Conversion Securities as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.

 

(j)            A converting Holder may elect to receive Ordinary Shares in the Company’s register of members (in the case of Ordinary Shares registered in the Cayman

 

 66 

 

 

Islands) or Ordinary Shares in the Company’s Hong Kong branch share register of members (in the case of Ordinary Shares registered in Hong Kong) in lieu of any ADSs deliverable upon conversion by specifying in the relevant Conversion Notice such election; provided that such election shall apply to all (but not part) of the Conversion Securities deliverable upon conversion. If a converting Holder elects to receive Ordinary Shares in lieu of any ADSs deliverable upon conversion, the Company will register in the Cayman share register or Hong Kong branch share register, as the case may be, the person or persons designated in the Conversion Notice as holder(s) of such number of Ordinary Shares equal to (i) the number of ADSs deliverable upon conversion under Section 13.01 (Conversion Privilege) and Section 13.02(a) (Conversion Procedure; Settlement Upon Conversion) (without taking into account any fractional ADS) multiplied by (ii) the number of Ordinary Shares then represented by one ADS as of the Conversion Date. If a converting Holder has requested in the Conversion Notice, to the extent permitted under applicable law and the rules and procedures of CCASS (in the case of Ordinary Shares registered in the Hong Kong branch register of members), the Company will take all necessary action to enable the Ordinary Shares registered in the Hong Kong branch register of members to be delivered to the designated Hong Kong stock account in CCASS of such converting Holder for so long as the Ordinary Shares are listed on the Hong Kong Stock Exchange; provided that, if a converting Holder elects to receive Ordinary Shares outside of CCASS or if the restrictive legend on the Notes has not been removed prior to conversion, the Company will make a share certificate or certificates representing such number of Ordinary Shares available for collection at the office of the Hong Kong share registrar or, if so requested in the relevant Conversion Notice, cause the Hong Kong share registrar to mail (at the risk, and, if sent at the converting Holder’s request otherwise than by ordinary mail, at the expense, of the person to whom such certificate or certificates are sent) such certificate or certificates to the person and at the place specified in the Conversion Notice.

 

(k)            Regardless of whether a Holder elects to receive Ordinary Shares in lieu of any ADSs deliverable upon conversion, the Company will not issue any fractional Conversion Securities upon conversion of the Notes and will instead pay cash in lieu of delivering any fractional Conversion Securities issuable upon conversion based on the Daily VWAP for the relevant Conversion Date.

 

(l)            Each conversion will be deemed to have been effected as to any Notes surrendered for conversion on the Conversion Date, and the person in whose name the ADSs (or Ordinary Shares in lieu thereof) shall be deliverable upon such conversion will be entitled to participate in any distribution or other transaction relating to the ADSs (or Ordinary Shares) as though such person were the holder of record of such ADSs (or Ordinary Shares) as of the close of business on the Conversion Date.

 

Section 13.03         Forced Conversion.

 

(a)            If (i) the Daily VWAP per ADS (or, if the ADSs are no longer traded on The NASDAQ Global Market, of the Ordinary Shares) exceeds two hundred percent (200%) of the Conversion Price (the relevant “Agreed Threshold”) on any twenty (20) Trading Days (whether or not consecutive) during any thirty (30) consecutive Trading

 

 67 

 

 

Day period beginning on or after the third (3rd) anniversary of the date of this Indenture (such thirty (30) consecutive Trading Day period being the relevant “Forced Conversion Qualification Period”), (ii) the Daily VWAP per ADS (or, if the ADSs are no longer traded on The NASDAQ Global Market, of the Ordinary Shares) for each of the last five (5) consecutive Trading Days during the Forced Conversion Qualification Period is not lower than the Agreed Threshold, and (iii) the aggregate average daily dollar trading volume (as reported on Bloomberg) of (x) the ADSs on The NASDAQ Global Market and (y) the Ordinary Shares on the Hong Kong Stock Exchange during such Forced Conversion Qualification Period is, in the aggregate of (x) and (y) (any amount not expressed in U.S. Dollars shall be converted into U.S. Dollars by using the average of the applicable exchange rate reported on Bloomberg FX Fixings page  (or, if such page is not available, its equivalent successor page) at 5:00 pm New York time on each Trading Day during such Forced Conversion Qualification Period), at least US$30.0 million, then, the Company shall have the right (but not the obligation), by providing written notice, to force the conversion of any Notes which remain outstanding on the Conversion Date (subject to the immediately following sentence) into Conversion Securities at the then applicable Conversion Rate (the “Forced Conversion Notice” and, the conversion of Notes pursuant to this Section 13.03(a), the “Forced Conversion”). The Conversion Date with respect to any such Forced Conversion will be a date specified by the Company in the Forced Conversion Notice to the Holders, which shall be a Business Day that is no less than 10 Business Days and no more than 30 Business Days after the date of the Forced Conversion Notice (the “Forced Conversion Date”).

 

(b)            A Forced Conversion will have the same effect as a conversion of the applicable outstanding principal amount of the Notes effected at the Holder’s election pursuant to Article 13 (Conversion of Notes) with a Conversion Date occurring on the Forced Conversion Date. No Holders will be required to deliver a Conversion Notice, provided any Holder may notify the Company, the ADS Depositary and the Conversion Agent in writing substantially in the form of Attachment 4 to the Form of Note attached hereto as Exhibit A no later than five (5) Business Days before the Conversion Date specified in the Forced Conversion Notice of its election to receive Ordinary Shares in lieu of any ADSs deliverable upon such Forced Conversion.

 

(c)            For the avoidance of doubt, the Company’s right to effect a Forced Conversion is subject to the Holders’ right to convert the Notes at any time prior to the close of business on the second Business Day preceding the Forced Conversion Date pursuant to Article 13 hereof.

 

Section 13.04         Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption. (a) If (i) the Company delivers a Forced Conversion Notice, (ii) a Make-Whole Fundamental Change occurs prior to, and including, the third Scheduled Trading Day (or the fifth Scheduled Trading Day, if the converting Holder elects to receive Ordinary Shares in lieu of any ADSs under Section 13.02(j)(Conversion Procedure; Settlement Upon Conversion)) prior to the Maturity Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change, or (iii) the Company delivers a Tax Redemption Notice and a Holder elects to convert its Notes in connection with such Tax Redemption, as the case may be, the

 

 68 

 

 

Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional ADSs (the “Additional ADSs”), as set forth below. The Forced Conversion by the Company shall automatically be deemed “in connection with” a Forced Conversion. In addition, a conversion of Notes shall be deemed for these purposes to be “in connection with” a Forced Conversion if a Holder’s Conversion Notice is received by the Conversion Agent from, and including, the date the Company delivers a Forced Conversion Notice to, and including, the second Business Day immediately prior to the related Forced Conversion Date. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Notice is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Business Day immediately following the Effective Date of such Make-Whole Fundamental Change). A conversion of Notes shall be deemed for these purposes to be “in connection with” a Tax Redemption if the relevant Conversion Notice is received by the Conversion Agent from, and including, the date the Company delivers a Tax Redemption Notice to, and including, the second Business Day immediately prior to the related Tax Redemption Date. The Company shall provide written notification to Holders, the Trustee and the Conversion Agent of the Effective Date of any Make-Whole Fundamental Change and issue a press release announcing such Effective Date no later than five Business Days after such Effective Date.

 

(b)            Upon surrender of Notes for conversion in connection with a Forced Conversion, a Make-Whole Fundamental Change or Tax Redemption, the Company shall cause to be delivered ADSs, including the Additional ADSs, in accordance with Section 13.02 (Conversion Procedure; Settlement Upon Conversion); provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation will be calculated based solely on the ADS Price for the transaction and shall be deemed to be an amount of cash per US$1,000 principal amount of converted Notes equal to the Conversion Rate (including any adjustment for Additional ADSs), multiplied by such ADS Price.

 

(c)            The number of Additional ADSs, if any, by which the Conversion Rate will be increased will be determined by reference to the table below, based on (i) in the case of a Forced Conversion, the date on which the Company delivers a Forced Conversion Notice, or in the case of a Make-Whole Fundamental Change, the date on which the Make-Whole Fundamental Change occurs or becomes effective or, in the case of a Tax Redemption, the date on which the Company delivers a Tax Redemption Notice (in each case, the “Effective Date”) and (ii) in the case of a Forced Conversion, the average of the Daily VWAP per ADS over the Forced Conversion Qualification Period, or in the case of a Make-Whole Fundamental Change, the price paid (or deemed to be paid) per ADS in the Make-Whole Fundamental Change or, in the case of a Tax Redemption, the average of the Last Reported Sale Prices of the ADSs over the ten

 

 69 

 

 

Trading Day period ending on, and including, the Trading Day immediately preceding the date the Company delivers such Tax Redemption Notice (in each case, the “ADS Price”). If the holders of the ADSs receive in exchange for their ADSs only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the ADS Price will be the cash amount paid per ADS. Otherwise, the ADS Price will be the average of the Last Reported Sale Prices of the ADSs over the ten Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.

 

(d)            The ADS Prices set forth in the column headings of the table below will be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted ADS Prices shall equal the ADS Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the ADS Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional ADSs set forth in the table below will be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 13.05 (Adjustment of Conversion Rate).

 

(e)            The following table sets forth the number of Additional ADSs to be received per US$1,000 principal amount of Notes pursuant to this Section 13.04 (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption) for each ADS Price and Effective Date set forth below:

 

Additional
ADSs per
$1,000 Bond
  ADS Price 
Effective Date  $21.00   $24.50   $30.00   $35.00   $40.00   $45.00   $49.00   $55.00   $60.00 
20-Jan-2023   6.8027    5.1743    3.5557    2.6314    1.9973    1.5422    1.2649    0.9480    0.7487 
31-Jan-2024   6.8027    5.1743    3.5557    2.6314    1.9973    1.5422    1.2649    0.9480    0.7487 
31-Jan-2025   6.8027    5.1743    3.5557    2.6314    1.9973    1.5422    1.2598    0.9389    0.7400 
31-Jan-2026   6.8027    5.1743    3.5557    2.5883    1.8980    1.4329    1.1612    0.8604    0.6758 
31-Jan-2027   6.8027    5.1743    3.3713    2.2934    1.6520    1.2351    0.9965    0.7356    0.5768 
31-Jan-2028   6.8027    4.6543    2.7123    1.8091    1.2833    0.9504    0.7637    0.5627    0.4415 
31-Jan-2029   6.8027    3.9147    1.8410    1.0920    0.7328    0.5327    0.4273    0.3173    0.2510 
31-Jan-2030   6.8027    0.0000    0.0000    0.0000    0.0000    0.0000    0.0000    0.0000    0.0000 

 

The exact ADS Prices and Effective Dates may not be set forth in the table above, in which case:

 

(i)            if the ADS Price is between two ADS Prices in the table above or the Effective Date is between two Effective Dates in the table, the number of Additional ADSs shall be determined by a straight-line interpolation between the number of Additional ADSs set forth for the higher and lower ADS Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year;

 

 70 

 

 

(ii)           if the ADS Price is greater than US$60.00 per ADS (subject to adjustment in the same manner as the ADS Prices set forth in the column headings of the table above pursuant to Section 13.04(d) (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption)), no Additional ADSs shall be added to the Conversion Rate; and

 

(iii)          if the ADS Price is less than US$21.00 per ADS (subject to adjustment in the same manner as the ADS Prices set forth in the column headings of the table above pursuant to Section 13.04(d) (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption)), no Additional ADSs shall be added to the Conversion Rate.

 

Notwithstanding the foregoing, in no event shall the Conversion Rate per US$1,000 principal amount of Notes exceed 47.6190 ADSs, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 13.05 (Adjustment of Conversion Rate).

 

(f)            Nothing in this Section 13.04 (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption) shall prevent an adjustment to the Conversion Rate pursuant to Section 13.05 (Adjustment of Conversion Rate).

 

Section 13.05         Adjustment of Conversion Rate. If the number of Ordinary Shares represented by the ADSs is changed, after the date of this Indenture, for any reason other than one or more of the events described in this Section 13.05, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Notes is based remains the same and make a corresponding inverse adjustment to the Conversion Price.

 

Notwithstanding the adjustment provisions set out in this Section 13.05 (Adjustment of Conversion Rate), if the Company distributes to holders of the Ordinary Shares any cash, rights, options, warrants, shares of Capital Stock or similar equity interest, evidences of indebtedness or other assets or property of the Company (but excluding any Expiring Rights) and a corresponding distribution is not made to holders of the ADSs, but, instead, the ADSs shall represent, in addition to Ordinary Shares, such cash, rights, options, warrants, shares of Capital Stock or similar equity interest, evidences of indebtedness or other assets or property of the Company, then an adjustment to the Conversion Rate set out in this Section 13.05 (Adjustment of Conversion Rate) shall not be made until and unless a corresponding distribution (if any) is made to holders of the ADSs, and such adjustment to the Conversion Rate shall be based on the distribution made to the holders of the ADSs and not on the distribution made to the holders of the Ordinary Shares. However, in the event that the Company issues or distributes to all holders of the Ordinary Shares any Expiring Rights, notwithstanding the immediately preceding sentence, the Company shall adjust the Conversion Rate pursuant to Section 13.05(b) (in the case of Expiring Rights entitling holders of the Ordinary Shares for a period of not more than 60

 

 71 

 

 

calendar days after the announcement date of such issuance to subscribe for or purchase Ordinary Shares) or Section 13.05(c) (in the case of all other Expiring Rights).

 

For the avoidance of doubt, if any event set out in this Section 13.05 (Adjustment of Conversion Rate) results in a change to the number of Ordinary Shares represented by the ADSs, then such change shall be deemed to satisfy the Company’s obligation to effect the relevant adjustment to the Conversion Rate on account of such event to the extent such change produces the same economic result as the adjustment to the Conversion Rate that would otherwise have been made on account of such event.

 

Subject to the foregoing, the Conversion Rate shall be adjusted from time to time by the Company if any of the following events set out in Sections 13.05(a) to 13.05(e) occurs, except that the Company shall not make any adjustments to the Conversion Rate if all Holders of the Notes participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the ADSs and solely as a result of holding the Notes, in any of the transactions set out in this Section 13.05 (Adjustment of Conversion Rate), without having to convert their Notes, as if they held a number of ADSs equal to the Conversion Rate then in effect, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee nor the Conversion Agent shall have any responsibility to monitor the accuracy of the calculation of any adjustment to the Conversion Rate. Notice of any adjustment to the Conversion Rate shall be given by the Company promptly to the Holders, the Trustee, the Paying Agent and the Conversion Agent and shall be conclusive and binding on the Holders, absent manifest error.

 

The Conversion Rate will be subject to adjustment in the following events:

 

(a)            If the Company exclusively issues Ordinary Shares as a dividend or distribution on all or substantially all the Ordinary Shares, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:

 

 

 

where,

 

CR0= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable;

 

CR1= the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the effective date of such share split or share combination, as applicable;

 

OS0= the number of Ordinary Shares outstanding immediately prior to the close of business on the Record Date for such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; and

 

 72 

 

 

OS1= the number of Ordinary Shares outstanding immediately after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination of Ordinary Shares, as applicable.

 

Any adjustment made under this Section 13.05(a) shall become effective immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the effective date for such share split or share combination, as applicable.

 

If any dividend or distribution set forth in this Section 13.05(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or announced.

 

(b)            If the Company issues to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs) any rights, options or warrants entitling them, for a period of not more than 60 calendar days after the date of such issuance, to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share that is less than the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares then represented by one ADS on each relevant Trading Day) or to subscribe for or purchase ADSs, at a price per ADS less than the average of the Last Reported Sale Prices, in each case, over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula:

 

 

 

where,

 

CR0= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such issuance;

 

CR1= the Conversion Rate in effect immediately after the close of business on such Record Date;

 

OS0= the number of Ordinary Shares outstanding immediately prior to the close of business on such Record Date;

 

X= the total number of Ordinary Shares (directly or in the form of ADSs) issuable pursuant to such rights, options or warrants; and

 

Y= the number of Ordinary Shares equal to (i) the aggregate price payable to exercise such rights, options or warrants, divided by (ii) the quotient of (a) the average of the Last Reported Sale Prices of the ADSs over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants divided by (b) the number of Ordinary Shares represented by one ADS on each such Trading Day.

 

 73 

 

 

Any increase made under this Section 13.05(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the close of business on the Record Date for such issuance. To the extent that Ordinary Shares (directly or in the form of ADSs) are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered (directly or in the form of ADSs). If such rights, options or warrants are not so issued, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such Record Date for such issuance had not occurred.

 

For purposes of this Section 13.05(b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share that is less than such average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each relevant Trading Day) or to subscribe for or purchase the ADSs at a price per ADS less than such average of the Last Reported Sale Prices of the ADSs, in each case, over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such Ordinary Shares or ADSs, as the case may be, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

 

(c)            If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs), excluding (i) dividends, distributions, rights, options or warrants as to which an adjustment was effected pursuant to Section 13.05(a) or Section 13.05(b), (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 13.05(d), and (iii) Spin-Offs as to which the provisions set forth below in this Section 13.05(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula:

 

 

 

where,

 

CR0= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution;

 

CR1= the Conversion Rate in effect immediately after the close of business on such Record Date;

 

 74 

 

 

SP0= the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares represented by one ADS on each relevant Trading Day) over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

 

FMV= the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding Ordinary Share (directly or in the form of ADSs) on the Ex-Dividend Date for such distribution.

 

Any increase made under the above portion of this Section 13.05(c) shall become effective immediately after the close of business on the Record Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such distribution had not been declared.

 

Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each US$1,000 principal amount of the Notes, at the same time and upon the same terms as holders of the Ordinary Shares (directly or in the form of ADSs) receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of Ordinary Shares (directly or in the form of ADSs) based on the Conversion Rate in effect on the Ex-Dividend Date for the distribution.

 

With respect to an adjustment pursuant to this Section 13.05(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares (directly or in the form of ADSs) of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when such dividend or other distribution is complete, will be, listed or admitted for trading on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (including the Hong Kong Stock Exchange) (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: where,

 

 

 

where,

 

CR0= the Conversion Rate in effect immediately prior to the close of business on the Record Date for the Spin-Off;

 

CR1= the Conversion Rate in effect immediately after the close of business on the Record Date for the Spin-Off;

 

FMV0= the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Ordinary Shares (directly or in the form of ADSs) applicable to one Ordinary Share (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to the Ordinary Shares (directly or in the form of ADSs) were to such Capital Stock or

 

 75 

 

 

similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date for the Spin-Off (the “Valuation Period”); and

 

MP0= the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares then represented by one ADS on each relevant Trading Day) over the Valuation Period.

 

The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading Day of the Valuation Period but will be given effect immediately after the close of business on the Record Date for the Spin-Off; provided that in respect of any conversion during the Valuation Period, references in the portion of this Section 13.05(c) related to Spin-Offs to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and excluding, the Conversion Date in determining the Conversion Rate.

 

For purposes of this Section 13.05(c) (and subject in all respects to Section 13.12 (Shareholder Rights Plans)), rights, options or warrants distributed by the Company to all holders of the Ordinary Shares (directly or in the form of ADSs) entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Ordinary Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares (directly or in the form of ADSs); (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Ordinary Shares (directly or in the form of ADSs), shall be deemed not to have been distributed for purposes of this Section 13.05(c) (and no adjustment to the Conversion Rate under this Section 13.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, is subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per Ordinary Share redemption or purchase price received by a holder or holders of Ordinary Shares (directly or in the form of ADSs) with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Ordinary Shares (directly or in the form of

 

 76 

 

 

ADSs) as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.

 

For purposes of Section 13.05(a), Section 13.05(b) and this Section 13.05(c), any dividend or distribution to which this Section 13.05(c) is applicable that also includes one or both of:

 

(A)          a dividend or distribution of Ordinary Shares (directly or in the form of ADSs) to which Section 13.05(a) is applicable (the “Clause A Distribution”); or

 

(B)           a dividend or distribution of rights, options or warrants to which Section 13.05(b) is applicable (the “Clause B Distribution”),

 

then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 13.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 13.05(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 13.05(a) and Section 13.05(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Record Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Record Date of the Clause C Distribution and (II) any Ordinary Shares (directly or in the form of ADSs) included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the close of business on such Record Date or immediately after the open of business on such effective date, as applicable” within the meaning of Section 13.05(a) or “outstanding immediately prior to the close of business on such Record Date” within the meaning of Section 13.05(b).

 

(d)            If any cash dividend or distribution is made to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs), the Conversion Rate shall be adjusted based on the following formula:

 

 

 

where,

 

CR0= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution;

 

CR1= the Conversion Rate in effect immediately after the close of business on such Record Date;

 

 77 

 

 

SP0= the Last Reported Sale Price of the ADSs (divided by the number of Ordinary Shares then represented by one ADS on such Trading Day) on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and

 

C= the amount in cash per Ordinary Share the Company distributes to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs).

 

Any increase pursuant to this Section 13.05(d) shall become effective immediately after the close of business on the Record Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

 

Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, for each US$1,000 principal amount of the Notes, at the same time and upon the same terms as holders of the Ordinary Shares (directly or in the form of ADSs), the amount of cash that such Holder would have received if such Holder owned a number of Ordinary Shares (directly or in the form of ADSs) based on the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.

 

(e)            If the Company or any of its Subsidiaries or consolidated affiliated entities makes a payment in respect of a tender or exchange offer for the Ordinary Shares (directly or in the form of ADSs), to the extent that the cash and value of any other consideration included in the payment per Ordinary Share or ADS exceeds the Last Reported Sale Price of the ADSs (divided by, in relation to Ordinary Shares, the number of Ordinary Shares then represented by one ADS on such Trading Day) on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (such last date, the “Expiration Date”), the Conversion Rate shall be increased based on the following formula:

 

 

 

where,

 

CR0= the Conversion Rate in effect immediately prior to the close of business on the Expiration Date;

 

CR1= the Conversion Rate in effect immediately after the close of business on the Expiration Date;

 

AC= the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for Ordinary Shares (directly or in the form of ADSs, as the case may be) purchased in such tender or exchange offer;

 

OS0= the number of Ordinary Shares outstanding immediately prior to the close of business on the Expiration Date (prior to giving effect to the purchase of all

 

 78 

 

 

Ordinary Shares or ADSs, as the case may be, accepted for purchase or exchange in such tender or exchange offer);

 

OS1= the number of Ordinary Shares outstanding immediately after the close of business on the Expiration Date (after giving effect to the purchase of all Ordinary Shares or ADSs, as the case may be, accepted for purchase or exchange in such tender or exchange offer); and

 

SP1= the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares then represented by one ADS on each such Trading Day) over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.

 

The adjustment to the Conversion Rate under this Section 13.05(e) shall occur with effect as of the close of business on the 10th consecutive Trading Day immediately following, and including, the Trading Day immediately following the Expiration Date, but will be given effect as of the close of business on the Expiration Date; provided that if the Conversion Date occurs within the 10 consecutive Trading Days immediately following, and including, the Trading Day immediately following the Expiration Date, any reference in this Section 13.05(e) with respect to 10 consecutive Trading Days shall be deemed replaced with a reference to such lesser number of Trading Days as have elapsed from, and including, the Trading Day immediately following the Expiration Date to, and including, the Conversion Date in determining the applicable Conversion Rate. No adjustment to the Conversion Rate under this Section 13.05(e) shall be made if such adjustment would result in a decrease in the Conversion Rate.

 

(f)            Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of Ordinary Shares, Class B Ordinary Shares or ADSs or any securities convertible into or exchangeable for Ordinary Shares, Class B Ordinary Shares or ADSs or the right to purchase Ordinary Shares, Class B Ordinary Shares or ADSs or such convertible or exchangeable securities.

 

(g)            In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 13.05, and to the extent permitted by applicable law and subject to the applicable rules of The NASDAQ Global Market and any other securities exchange on which any of the Company’s securities are then listed (including the Hong Kong Stock Exchange), the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Board of Directors determines that such increase would be in the Company’s best interest, and the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of the Ordinary Shares or the ADSs or rights to purchase Ordinary Shares or ADSs in connection with a dividend or distribution of Ordinary Shares or ADSs (or rights to acquire Ordinary Shares or ADSs) or similar event.

 

(h)            Notwithstanding anything to the contrary in this Article 13 (Conversion of Notes), the Conversion Rate shall not be adjusted:

 

 79 

 

 

(i)            upon the issuance of any Ordinary Shares, Class B Ordinary Shares or ADSs pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in Ordinary Shares, Class B Ordinary Shares or ADSs under any plan;

 

(ii)           upon the issuance of any Ordinary Shares, Class B Ordinary Shares or ADSs or options or rights to purchase those Ordinary Shares, Class B Ordinary Shares or ADSs pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries or consolidated affiliated entities;

 

(iii)          upon the issuance of any Ordinary Shares, Class B Ordinary Shares or ADSs pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;

 

(iv)          solely for a change in the par value of the Ordinary Shares or Class B Ordinary Shares; or

 

(v)           for accrued and unpaid interest, if any.

 

(i)            All calculations and other determinations under this Article 13 (Conversion of Notes) shall be made by the Company and shall be made to the nearest one-ten thousandth (1/10,000) of an ADS.

 

(j)            Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officers’ Certificate setting forth the Conversion Rate before and after such adjustment and the date on which each adjustment becomes effective, and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall send such notice of such adjustment of the Conversion Rate to each Holder at its last address appearing on the Note Register (or in the case of Global Notes, electronically in accordance with the applicable rules and procedures of Euroclear and/or Clearstream) with a copy to the Trustee and Conversion Agent (if other than the Trustee). Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

 

(k)            For purposes of this Section 13.05, the number of Ordinary Shares at any time outstanding shall not include Ordinary Shares held in the treasury of the Company (directly or in the form of ADSs) so long as the Company does not pay any dividend or make any distribution on Ordinary Shares held in the treasury of the Company (directly

 

 80 

 

 

or in the form of ADSs), but shall include Ordinary Shares issuable in respect of scrip certificates issued in lieu of fractions of Ordinary Shares.

 

(l)            For purposes of this Section 13.05, the “effective date” means the first date on which the ADSs trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

 

Section 13.06         Adjustments of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices or the ADS Price for purposes of a Forced Conversion, a Make-Whole Fundamental Change or a Tax Redemption over a span of multiple days, the Board of Directors shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective pursuant to Section 13.05, or any event requiring an adjustment to the Conversion Rate pursuant to Section 13.05 where the Record Date, effective date or expiration date, as the case may be, of the event occurs, at any time during the period when such Last Reported Sale Prices or ADS Prices are to be calculated.

 

Section 13.07         Ordinary Shares to Be Fully Paid. The Company shall provide, free from preemptive rights, out of its authorized but unissued Ordinary Shares or Ordinary Shares held in treasury, a sufficient number of authorized, validly-issued and fully paid Ordinary Shares that corresponds to the number of Conversion Securities due upon conversion of the Notes from time to time as such Notes are presented for conversion (assuming that at the time of computation of such number of Conversion Securities, all such Notes would be converted by a single Holder).

 

Section 13.08         Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares.

 

(a)            In the case of:

 

(i)            any recapitalization, reclassification or change of the Ordinary Shares (other than changes resulting from a subdivision or combination or change in par value),

 

(ii)           any consolidation, merger, combination, amalgamation, scheme of arrangement or scheme of reconstruction or similar transaction involving the Company,

 

(iii)          any sale, lease or other transfer to a third party of the consolidated assets of the Company Group substantially as an entirety or

 

(iv)         any statutory share exchange,

 

in each case, as a result of which the Conversion Securities would be converted into, or exchanged for, Capital Stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) (Supplemental Indentures Without Consent of Holders) providing that, at and after the effective time of such Merger Event, the right to convert each US$1,000 principal amount of the Notes

 

 81 

 

 

shall be changed into a right to convert such principal amount of the Notes into the kind and amount of shares of Capital Stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of ADSs equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one ADS is entitled to receive) upon such Merger Event; provided, however, that (x) at and after the effective time of the Merger Event the number of ADSs otherwise deliverable upon conversion of the Notes in accordance with Section 13.02 (Conversion Procedure; Settlement Upon Conversion) shall instead be deliverable in the amount and type of Reference Property that a holder of that number of ADSs would have been entitled to receive in such Merger Event; (y) any amount payable in cash upon conversion of the Notes as set forth in this Indenture will continue to be payable in cash, and (z) the Last Reported Sale Price shall be calculated based on the value of a unit of Reference Property.

 

If the Merger Event causes the ADSs or Ordinary Shares to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of holder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (A) the weighted average of the types and amounts of consideration received by the holders of ADSs or Ordinary Shares that affirmatively make such an election or (B) if no holders of ADSs or Ordinary Shares affirmatively make such an election, the types and amounts of consideration actually received by the holders of the ADSs or Ordinary Shares and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) or clause (ii), as the case may be, attributable to one ADS. The Company shall provide written notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made.

 

Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is practicable to the adjustments provided for in this Article 13 (Conversion of Notes) (it being understood that no such adjustments shall be required with respect to any portion of the Reference Property that does not consist of shares of Common Equity (however evidenced) or depositary receipts in respect thereof). If, in the case of any Merger Event, the Reference Property includes shares of Capital Stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing Person, as the case may be, in such Merger Event, then such other Person shall also execute such supplemental indenture, and such supplemental indenture shall contain such provisions to protect the interests of the Holders of the Notes, including the repurchase rights of Holders pursuant to Article 15 (Repurchase of Notes at Option of Holders) and the redemption right of Holders pursuant to Article 16 (Redemption only for Taxation Reasons), as the Board of Directors shall reasonably consider necessary by reason of the foregoing.

 

(b)            In the event a supplemental indenture is executed pursuant to subsection (a) of this Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares), the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger

 

 82 

 

 

Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with. The Company shall cause notice of the execution of such supplemental indenture to be sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

 

(c)            The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares). None of the foregoing provisions shall affect the right of a Holder of Notes to convert its Notes into Conversion Securities as set forth in Section 13.01 (Conversion Privilege) and Section 13.02 (Conversion Procedure; Settlement Upon Conversion) prior to the effective date of such Merger Event.

 

(d)            The above provisions of this Section 13.01 (Conversion Privilege) shall similarly apply to successive Merger Events.

 

Section 13.09          Certain Covenants. (a) The Company covenants that all Conversion Securities delivered upon conversion of Notes (and in the case of ADSs, all Ordinary Shares represented by such ADSs) will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.

 

(b)            The Company further covenants that if at any time the Ordinary Shares (directly or in the form of ADSs) shall be listed on any U.S. Exchange or Permitted Exchange, the Company will list and keep listed on any such exchange or automated quotation system, so long as the Ordinary Shares (directly or in the form of ADSs) shall be so listed on any such exchange or automated quotation system, any Conversion Securities deliverable upon conversion of the Notes.

 

(c)            The Company covenants to take all actions and obtain all approvals and registrations as are necessary or appropriate with respect to the conversion of the Notes into Conversion Securities, in each case, in accordance with the terms of this Indenture.

 

(d)            Subject to Section 13.13 (Amendment Upon Unavailability of ADS Facility), if applicable, the Company further covenants to provide Holders with a reasonably detailed written description of the mechanics for the delivery of ADSs upon conversion of Notes as set forth in the Deposit Agreement upon request by the ADS Depositary or the ADS Custodian.

 

Section 13.10          Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any ADSs, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any

 

 83 

 

 

other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any ADSs or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion, the accuracy or inaccuracy of any mathematical calculation or formulae under this Indenture, whether by the Company or any Person so authorized by the Company for such purpose under this Indenture or the failure by the Company to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 13. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares) relating either to the kind or amount of ADSs or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 13.08 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01 (Duties and Responsibilities of Trustee), may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.

 

Section 13.11          Notice to Holders Prior to Certain Actions. In case of any:

 

(a)            action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 13.05 (Adjustment of Conversion Rate) or Section 13.11 (Notice to Holders Prior to Certain Actions);

 

(b)            Merger Event; or

 

(c)            voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of its Subsidiaries;

 

then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be sent to each Holder at its address appearing on the Note Register, as promptly as possible but in any event at least 20 days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Ordinary Shares or ADSs, as the case may be, of record are to be determined for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Ordinary Shares or ADSs, as the case may be, of record shall be entitled to exchange their Ordinary Shares or ADSs, as the case may be, for securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.

 

 84 

 

 

Section 13.12         Shareholder Rights Plans. To the extent that the Company has a shareholder rights plan in effect upon conversion of the Notes, each of the Conversion Securities delivered upon such conversion shall be entitled to receive (either directly or in respect of the Ordinary Shares underlying such ADSs) the appropriate number of rights under the shareholder rights plan, if any, and the global securities representing the Conversion Securities delivered upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such shareholder rights plan, as the same may be amended from time to time. Notwithstanding the foregoing, if, prior to any conversion, the rights have separated from the Ordinary Shares underlying the ADSs in accordance with the provisions of the applicable shareholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Ordinary Shares (directly or in the form of ADSs) Distributed Property as provided in Section 13.05(c) (Adjustment of Conversion Rate), subject to readjustment in the event of the expiration, termination or redemption of such rights.

 

Section 13.13         Amendment Upon Unavailability of ADS Facility. If the Ordinary Shares cease to be represented by American depositary shares issued under a depositary receipt program sponsored by the Company (the “ADS Cessation Date”) and the Ordinary Shares at such time are listed and traded on any U.S. Exchange or Permitted Exchange (each, an “Amendment Event”), on and after the effective date of an Amendment Event, Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares) shall be deemed to apply mutatis mutandis as if the Reference Property for the Notes were the Ordinary Shares (and other property, if any) represented by the ADSs on the effective date of such Amendment Event; provided that, the supplemental indenture required therein to reflect the replacement of the ADSs with the Ordinary Shares (and other property, if any) shall be executed no later than five Business Days after the effective date of such Amendment Event and, in addition to the amendments required under Section 13.08 (Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares), the supplemental indenture shall also provide that:

 

(a)            each reference herein (and in the Notes) to the ADSs related to the terms of the Notes shall be replaced by a reference to the number of Ordinary Shares (and other property, if any) represented by the ADSs on the effective date of such Amendment Event;

 

(b)            all references to the “Last Reported Sale Price,” “Daily VWAP” and “Trading Day” of the ADSs herein shall be replaced by the “Last Reported Sale Price,” “Daily VWAP” and “Trading Day” of the Ordinary Shares, respectively, as customarily defined for securities traded on the Relevant Exchange;

 

(c)            other appropriate adjustments, including adjustments to the Conversion Rate, will be made to reflect such Amendment Event; and

 

(d)            such other provisions that the Board of Directors reasonably determines are appropriate will be made to preserve the economic interests of the Holders and to give effect to clauses (a) to (c) above.

 

 85 

 

 

In making any amendment to the terms or definitions relating to trading and listing of Ordinary Shares (including, but not limited to, “Last Reported Sale Price,” “Daily VWAP,” “Trading Day” and “Fundamental Change”), the relevant exchange on which Ordinary Shares are listed or traded for purpose of such terms and definitions (the “Relevant Exchange”) shall be: (x) if the Ordinary Shares at such time are listed on a U.S. Exchange, such U.S. Exchange; or (y) if the Ordinary Shares at such time are not listed on any U.S. Exchange but are listed on a Permitted Exchange, such Permitted Exchange; provided that if the Ordinary Shares at that time are listed on more than one Permitted Exchange, the Relevant Exchange shall be the Permitted Exchange that is the primary stock exchange for the Ordinary Shares, provided further that if the Ordinary Shares at that time are listed on more than one Permitted Exchange that is a primary stock exchange for the Ordinary Shares, the Relevant Exchange shall be the primary stock exchange with the highest trading volume of the Ordinary Shares during the twenty (20) consecutive Trading Days period immediately prior to the date of amendment.

 

In making such amendments, if currency translations between U.S. Dollars and any other currency are required, the exchange rate in effect on the date of determination as the Board of Directors determines in good faith shall apply.

 

The Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be sent to each Holder at its address appearing on the Note Register, as promptly as possible but in any event at least 20 days prior to the effective date of the relevant Amendment Event, a notice stating the effective date of the relevant Amendment Event and any adjustment to the Conversion Rate.

 

ARTICLE 14
PRINCIPAL; REDEMPTION AT MATURITY

 

Section 14.01         Principal. Any and all principal amount of the outstanding Notes remaining unpaid, together with all interest accrued but unpaid thereon, automatically and unconditionally shall be due and payable in full in cash on the Maturity Date unless previously converted, exchanged, redeemed, repurchased or otherwise cancelled.

 

Section 14.02         Redemption at Maturity. Unless previously repurchased, converted or purchased and cancelled as provided herein, the Company shall repurchase all of the Notes from the Holders by paying the Maturity Redemption Price on the Maturity Date. The “Maturity Redemption Price” means an amount equal to the sum of the principal amount of the outstanding Notes on the Maturity Date and the accrued and unpaid interest thereon.

 

ARTICLE 15
REPURCHASE OF NOTES AT OPTION OF HOLDERS

 

Section 15.01         Repurchase at Option of Holders. (a) Each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash on January 31, 2028 (the “Repurchase Date”), all of such Holder’s Notes, or any portion thereof that is a minimum of US$200,000 principal amount and integral multiples of US$1,000 in excess thereof , at a repurchase price (the “Repurchase Price”) that is equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest to, but excluding, the Repurchase

 

 86 

 

 

Date; provided that any such accrued and unpaid interest shall be paid not to the Holders submitting the Notes for repurchase on the Repurchase Date but instead to the Holders of such Notes at the close of business on the Regular Record Date immediately preceding the Repurchase Date. Not later than 20 Business Days prior to the Repurchase Date, the Company shall mail a notice (the “Company Notice”) by first class mail to the Trustee, to the Paying Agent, the Conversion Agent if other than the Trustee and to each Holder at its address shown in the Note Register of the Note Registrar (and to beneficial owners as required by Applicable Law and to the Conversion Agent if other than the Trustee). The Company Notice shall state:

 

(i)            the last date on which a Holder may exercise its repurchase right pursuant to this Section 15.01 (the “Repurchase Expiration Time”);

 

(ii)           the Repurchase Price;

 

(iii)          the Repurchase Date;

 

(iv)          the name and address of the Conversion Agent and Paying Agent;

 

(v)          that the Notes with respect to which a Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Repurchase Notice in accordance with the terms of this Indenture;

 

(vi)         that the Holder shall have the right to withdraw any Notes surrendered prior to the Repurchase Expiration Time; and (vii) the procedures a Holder must follow to exercise its repurchase rights under this Section 15.01 and a brief description of those rights.

 

At the Company’s request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Company Notice shall be prepared by the Company.

 

Simultaneously with providing the Company Notice, the Company shall publish a notice containing the information included in the Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.01.

 

Repurchases of Notes under this Section 15.01 shall be made, at the option of the Holder thereof, upon:

 

(A)           delivery to the Paying Agent or other agent appointed for such purpose by the Holder of a duly completed notice (the “Repurchase Notice”) in the form set forth in Attachment 3 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the rules and procedures of Euroclear and/or Clearstream for surrendering interests in global notes, if the Notes are Global Notes, in each case during the period beginning at any time from the open of business on the date that is 20

 

 87 

 

 

Business Days prior to the Repurchase Date until the close of business on the second Business Day immediately preceding the Repurchase Date; and

 

(B)            delivery of the Notes, if the Notes are Physical Notes, to the Trustee at any time after delivery of the Repurchase Notice (together with all necessary endorsements) at the specified office of the Paying Agent or other agent appointed for such purpose, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the rules and procedures of Euroclear and/or Clearstream, in each case such delivery being a condition to receipt by the Holder of the Repurchase Price therefor.

 

Each Repurchase Notice shall state:

 

(A)           in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;

 

(B)            the portion of the principal amount of the Notes to be repurchased, which must be at least US$200,000 and integral multiples of US$1,000 in excess thereof ; and

 

(C)           that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;

 

provided, however, that if the Notes are Global Notes, the Repurchase Notice must comply with appropriate rules and procedures of Euroclear and/or Clearstream.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent or other agent appointed for such purpose the Repurchase Notice contemplated by this Section 15.01 shall have the right to withdraw, in whole or in part, such Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Repurchase Date by delivery of a duly completed written notice of withdrawal to the Paying Agent or other agent appointed for such purpose in accordance with Section 15.03.

 

The Paying Agent or other agent appointed for such purpose shall as soon as practicable notify the Company of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof.

 

No Repurchase Notice with respect to any Notes may be delivered and no Note may be surrendered for repurchase pursuant to this Section 15.01 by a Holder thereof to the extent such Holder has also delivered a Fundamental Change Repurchase Notice with respect to such Note in accordance with Section 15.02 and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03.

 

(b)            Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the Holders on the Repurchase Date if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such Repurchase Date (including as a result of the payment of the Repurchase Price with respect to such Notes and any related interest described in this Indenture on the Tax Redemption Date). The Trustee will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (including as a result of

 

 88 

 

 

the payment of the Repurchase Price with respect to such Notes and any related interest described in this Indenture on the Tax Redemption Date), or any instructions for book-entry transfer of the Notes in compliance with the rules and procedures of Euroclear and/or Clearstream shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Repurchase Notice with respect thereto shall be deemed to have been withdrawn.

 

Section 15.02          Repurchase at Option of Holders Upon a Fundamental Change.

 

If a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is in denominations of US$200,000 principal amount and integral multiples of US$1,000 in excess thereof, on the Business Day (the “Fundamental Change Repurchase Date”) notified in writing by the Company as set forth in Section 15.02(b) (Repurchase at Option of Holders Upon a Fundamental Change) that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay on such Interest Payment Date the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15. The Trustee and any other Conversion Agent, Paying Agent (or any other agent appointed for such purposes) shall have no responsibility to determine the Fundamental Change Repurchase Price.

 

(a)            Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:

 

(i)            delivery to the Paying Agent (or any other agent appointed for this purpose) by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the rules and procedures of Euroclear and/or Clearstream for surrendering interests in global notes, if the Notes are Global Notes; and

 

(ii)           delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent or another agent appointed for such purposes together with, or at any time after, delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer), or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the rules and procedures of Euroclear and/or Clearstream, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.

 

in each case (i) and (ii), on or before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date

 

 89 

 

 

The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:

 

(A)            in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;

 

(B)            the portion of the principal amount of Notes to be repurchased, which must be in denominations of US$200,000 principal amount and integral multiples of US$1,000 in excess thereof; and

 

(C)            that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;

 

provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate rules and procedures of Euroclear and/or Clearstream.

 

Notwithstanding anything herein to the contrary, any Holder delivering the Fundamental Change Repurchase Notice contemplated by this Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change) shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a duly completed written notice of withdrawal to the Paying Agent (or any other agent appointed for this purpose) in accordance with Section 15.03 (Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice).

 

The Paying Agent (or any other agent appointed for this purpose) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.

 

No Fundamental Change Repurchase Notice with respect to any Notes may be delivered and no Note may be surrendered by a Holder for repurchase thereof if such Holder has also delivered a Repurchase Notice in accordance with Section 15.01 (Repurchase at Option of Holders) and not validly withdrawn such Repurchase Notice in accordance with Section 15.03 (Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice).

 

(b)            On or before the 10th calendar day after the occurrence of a Fundamental Change, the Company shall provide to all Holders and the Trustee, the Paying Agent and the Conversion Agent (or any other agent appointed for such purpose) a written notice (the “Fundamental Change Company Notice”) of the occurrence of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice may be delivered electronically in accordance with the applicable rules and procedures of Euroclear and/or Clearstream. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:

 

 90 

 

 

(i)            the events causing the Fundamental Change and whether such events also constitute a Make-Whole Fundamental Change;

 

(ii)           the date of the Fundamental Change;

 

(iii)          the last date on which a Holder may exercise the repurchase right pursuant to this Article 15 (Repurchase of Notes at Option of Holders);

 

(iv)          the Fundamental Change Repurchase Price;

 

(v)           the Fundamental Change Repurchase Date;

 

(vi)          the name and address of the Trustee, the Paying Agent, the Conversion Agent or any other agent appointed for the repurchase, if any;

 

(vii)         if applicable, the Conversion Rate and any adjustments to the Conversion Rate;

 

(viii)        if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice or Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with the terms of this Indenture; and

 

(ix)          the procedures that Holders must follow to require the Company to repurchase their Notes.

 

No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change).

 

At the Company’s written request, the Paying Agent (or any other agent appointed for such purpose) shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.

 

(c)            Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes. The Paying Agent (or any other agent appointed for such purpose) will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the rules and procedures of Euroclear and/or Clearstream shall be

 

 91 

 

 

deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.

 

Section 15.03          Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice. (a) A Repurchase Notice or Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a duly completed written notice of withdrawal delivered to the Trustee, Paying Agent or any other agent appointed for such purpose in accordance with this Section 15.03 (Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice) at any time prior to the close of business on the second Business Day immediately preceding the Repurchase Date or prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date, as the case may be, specifying:

 

(A)           the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,

 

(B)            if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and

 

(C)            the principal amount, if any, of such Note that remains subject to the original Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, which portion must be in denominations of US$200,000 principal amount and integral multiples of US$1,000 in excess thereof,

 

provided, however, that if the Notes are Global Notes, the notice must comply with appropriate rules and procedures of Euroclear and/or Clearstream.

 

Section 15.04         Deposit of Repurchase Price or Fundamental Change Repurchase Price(a)            . (a) The Company will deposit with the Paying Agent (or any other agent appointed for such purpose, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04 (Provisions as to Paying Agent)) at or prior to 10:00 a.m., London time, one Business Day prior to the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Repurchase Price or Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Paying Agent (or any other agent appointed for such purpose), payment for Notes surrendered for repurchase (and not withdrawn in accordance with Section 15.03 (Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice)) will be made on the later of (i) the Repurchase Date or Fundamental Change Repurchase Date, as the case may be (provided the Holder has satisfied the conditions in Section 15.01 (Repurchase at Option of Holders) or Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change), as the case may be) and (ii) the time of book-entry transfer or the delivery of such Note to the Paying Agent (or any other agent appointed for such purpose) by the Holder thereof in the manner required by Section 15.01 (Repurchase at Option of Holders) or Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change), as applicable, by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that payments to the Common Depositary shall be made by wire transfer of immediately available funds to the

 

 92 

 

 

account of the Common Depositary or its nominee. The Paying Agent (or any other agent appointed for such purpose) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Repurchase Price or Fundamental Change Repurchase Price, as the case may be.

 

(b)            If by 10:00 a.m., New York City time, on the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, the Paying Agent (or any other agent appointed for such purpose) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Repurchase Date or Fundamental Change Repurchase Date, as the case may be, then, with respect to the Notes that have been properly surrendered for repurchase and not validly withdrawn, on such Repurchase Date or Fundamental Change Repurchase Date, as the case may be, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Repurchase Price or Fundamental Change Repurchase Price, as the case may be).

 

(c)            Upon surrender of a Physical Note that is to be repurchased in part pursuant to Section 15.01 (Repurchase at Option of Holders) or Section 15.02 (Repurchase at Option of Holders Upon a Fundamental Change), the Company shall execute and the Trustee, upon receipt of a Company Order, shall authenticate and deliver to the Holder a new Physical Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.

 

Section 15.05          Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Company will, if required, comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15.

 

ARTICLE 16
REDEMPTION ONLY FOR TAXATION REASONS

 

Section 16.01          No Redemption Except for Taxation Reasons (a) The Notes may not be redeemable by the Company at its option prior to the Maturity Date, except as set out in this Article 16 (Redemption only for Taxation Reasons), and no sinking fund shall be provided for the Notes. The Notes may be redeemed at the Company’s option, in whole but not in part (a “Tax Redemption”), at the Tax Redemption Price, if the Company is or would be required to pay Additional Amounts (which are more than a de minimis amount) as a result of (i) any change in the Applicable Tax Law of a Relevant Taxing Jurisdiction, which change is not publicly announced before, and becomes effective after, the date when the Notes are initially issued (or, if the applicable taxing jurisdiction became a Relevant Taxing Jurisdiction on a date after the Notes are initially issued, such later date), or (ii) any change on or after the date when the Notes are initially issued or, in the case of a Successor Company, after the date such Successor Company assumes all of the Company’s obligations under the Notes and this Indenture, in an interpretation, administration or application of such Applicable Tax Law by any legislative body,

 

 93 

 

 

court, governmental agency, taxing authority or regulatory or administrative authority of such relevant taxing jurisdiction (including the enactment of any legislation and the announcement or publication of any judicial decision or regulatory or administrative interpretation or determination) (each such change, a “Change in Tax Law”); provided that the Company cannot avoid these obligations by taking reasonable measures available to it (provided that changing the Company’s jurisdiction of organization or domicile shall not be considered a reasonable measure) and further provided that, prior to or simultaneously with the Tax Redemption Notice, the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel specializing in taxation attesting that the Company has or will become, on or before the Tax Redemption Date, obligated to pay such Additional Amounts as a result of a Change in Tax Law. The Trustee shall and is entitled to accept and rely upon such Opinion of Counsel and Officers’ Certificate (without further investigation or enquiry) and it shall be conclusive and binding on the Holder.

 

(b)          If the Tax Redemption Date falls after a Regular Record Date and on or prior to the immediately following Interest Payment Date, the Company shall, on or, at its election, before such Interest Payment Date, pay the full amount of accrued and unpaid interest, and any Additional Amounts with respect to such interest, due on such interest payment date to the Holder of the Notes on the Regular Record Date corresponding to such Interest Payment Date.

 

(c)            The Company shall notify the Trustee in writing of its election and the date on which such interest and any Additional Amounts with respect to such interest will be paid at the time it provides such Tax Redemption Notice.

 

Section 16.02          Notice of Tax Redemption. (a)  In the event that the Company exercises its Tax Redemption right pursuant to Section 16.01 (No Redemption Except for Taxation Reasons), it shall fix a date for redemption (the “Tax Redemption Date”) and it or, at its written request received by the Trustee not less than 35 days prior to the Tax Redemption Date (or such shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company shall send, or cause to be sent, a written notice of such Tax Redemption prepared by the Company (a “Tax Redemption Notice”) not less than 30 nor more than 60 calendar days prior to the Tax Redemption Date to each Holder of Notes so to be redeemed at its last address as the same appears on the Note Register (or in the case of Global Notes, electronically in accordance with the applicable rules and procedures of Euroclear and/or Clearstream); provided, however, that, if the Company shall give such notice, it shall also give a written notice of the Tax Redemption Date to the Trustee. The Tax Redemption Date must be a Business Day.

 

(b)            The Company shall not give any Tax Redemption Notice earlier than 60 days prior to the earliest date on which the Company would be obligated to pay any Additional Amounts, and the obligation to pay such Additional Amounts must be in effect at the time such Tax Redemption Notice is given. Simultaneously with providing such notice, the Company shall publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on its website or through such other public medium as it may use at that time.

 

 94 

 

 

(c)            The Tax Redemption Notice, if sent in the manner herein provided, shall be conclusively presumed to have been given duly, whether or not the Holder receives such notice. In any case, failure to give such Tax Redemption Notice or any defect in the Tax Redemption Notice to the Holder of any Note designated for redemption shall not affect the validity of the proceedings for the redemption of any other Note.

(d)            Each Tax Redemption Notice shall specify:

(i)              the Tax Redemption Date;

(ii)             the Tax Redemption Price;

(iii)            the place or places where such Notes are to be surrendered for payment of the Tax Redemption Price;

(iv)            that on the Tax Redemption Date, the Tax Redemption Price will become due and payable upon each Note to be redeemed, and that the interest thereon, if any, shall cease to accrue on and after the Tax Redemption Date;

(v)             that Holders may surrender their Notes for conversion at any time prior to the close of business on the second Business Day immediately preceding the Tax Redemption Date;

(vi)             the procedures a converting Holder must follow to convert its Notes;

(vii)            that Holders have the right to elect not to have their Notes redeemed by delivery to the Company, with a copy to the Paying Agent, a written notice to that effect not later than the second Business Day immediately preceding the Tax Redemption Date;

(viii)           that Holders who wish to elect not to have their Notes redeemed must satisfy the requirements set forth herein;

(ix)             that, at and after the Tax Redemption Date, Holders who elect not to have their Notes redeemed (a) will not receive any Additional Amounts with respect to payments or delivery (including consideration due in respect of conversion or the Fundamental Change Repurchase Price, and whether payable in cash, Conversion Securities or otherwise) made in respect to such Holders’ Notes solely as a result of the Change in Tax Law that caused such Additional Amounts to be paid after the Tax Redemption Date and (b) all future payments (including consideration due in respect of conversion or the Fundamental Change Repurchase Price, and whether payable in cash, Conversion Securities or otherwise) with respect to the Notes will be subject to any tax required to be withheld or deducted under the laws of a Relevant Taxing Jurisdiction, as a result of such Change in Tax Law; provided that, notwithstanding the foregoing, if a Holder electing not to be subject to a Tax Redemption converts its Notes in

 95 

 

connection with such Tax Redemption, the Company will be obligated to pay Additional Amounts, if any, with respect to such conversion;

(x)              the Conversion Rate and, if applicable, the number of ADSs added to the Conversion Rate in accordance with Section 13.04 (Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Forced Conversion, Make-Whole Fundamental Change and Tax Redemption); and

(xi)             the ISIN, Common Code or other similar numbers, if any, assigned to such Notes.

A Tax Redemption Notice shall be irrevocable and shall not be subject to conditions. In the case of a Tax Redemption, a Holder may convert its Notes at any time until the close of business on the second Business Day preceding the Tax Redemption Date.

Section 16.03         Payment of Notes Called for Tax Redemption for Taxation.

(a)            If any Tax Redemption Notice has been given in respect of the Notes in accordance with Section 16.02 (Notice of Tax Redemption), the Notes shall become due and payable on the Tax Redemption Date at the place or places stated in the Tax Redemption Notice and at the applicable Tax Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Tax Redemption Notice, the Notes shall be paid and redeemed by the Company and the applicable Tax Redemption Price.

(b)           Prior to 10:00 a.m., London time on the Tax Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 4.04 (Provisions as to Paying Agent) an amount of cash in immediately available funds, sufficient to pay the Tax Redemption Price of all of the Notes to be redeemed on such Tax Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Tax Redemption Date for such Notes. The Trustee or other agent appointed for such purpose shall, promptly after such payment and upon written demand by the Company, return to Company any funds in excess of the Tax Redemption Price.

Section 16.04         Holders’ Right to Avoid Redemption. Notwithstanding anything to the contrary in this Article 16, if the Company has given a Tax Redemption Notice as described in Section 16.02 (Notice of Tax Redemption), each Holder of Notes will have the right to elect that such Holder’s Notes will not be subject to Tax Redemption. If a Holder elects not to be subject to a Tax Redemption, the Company will not be required to pay any Additional Amounts (including consideration due in respect of conversion or Fundamental Change Repurchase Price, and whether payable in cash, Conversion Securities or otherwise) with respect to any payment of interest