Sec Form 13D Filing - Liu Tony filing for Cellular Biomedicine Group Inc. (CBMG) - 2020-06-24

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
Cellular Biomedicine Group, Inc.
(Name of Issuer)
Common Stock, par value of $0.001 per share
(Title of Class of Securities)
15117P102
(CUSIP Number)
Bizuo (Tony) Liu c/o Cellular Biomedicine Group, Inc. 1345 Avenue of Americas, 15th Floor New York, New York 10105 (347) 905-5663   With a copy to:   Eleazer N. Klein, Esq. Schulte Roth & Zabel LLP 919 Third Avenue New York, NY 10022 (212) 756-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 24, 2020
(Date of Event Which Requires Filing of This Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. þ**

 (Page 1 of 18 Pages)

______________________________

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

** With the exception of Mission Right Limited, none of the Reporting Persons (defined below) previously filed a statement on Schedule 13G with respect to securities of the Issuer (defined below).

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

1	NAME OF REPORTING PERSON Bizuo (Tony) Liu
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS OO (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 863,617 shares of Common Stock (includes 616,100 shares issuable upon exercise of options and 22,500 shares issuable upon the vesting of restricted stock units)**
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 863,617 shares of Common Stock (includes 616,100 shares issuable upon exercise of options and 22,500 shares issuable upon the vesting of restricted stock units)**
	10	SHARED DI SPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 863,617 shares of Common Stock (includes 616,100 shares issuable upon exercise of options and 22,500 shares issuable upon the vesting of restricted stock units)**
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.3%
14	TYPE OF REPORTING PERSON IN

 

** See Items 5 and 6.

 

1	NAME OF REPORTING PERSON Li (Helen) Zhang
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS OO (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 119,898 shares of Common Stock (includes 91,700 shares issuable upon exercise of options and 6,569 shares issuable upon the vesting of restricted stock units)**
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 119,898 shares of Common Stock (includes 91,700 shares issuable upon exercise of options and 6,569 shares issuable upon the vesting of restricted stock units)**
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 119,898 shares of Common Stock (includes 91,700 shares issuable upon exercise of options and 6,569 shares issuable upon the vesting of restricted stock units)**
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.6%
14	TYPE OF REPORTING PERSON IN

 

** See Items 5 and 6.

 

 

1	NAME OF REPORTING PERSON Yihong Yao
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS OO (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 114,949 shares of Common Stock (includes 61,500 shares issuable upon exercise of options and 4,972 shares issuable upon the vesting of restricted stock units)**
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 114,949 shares of Common Stock (includes 61,500 shares issuable upon exercise of options and 4,972 shares issuable upon the vesting of restricted stock units)**
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 114,949 shares of Common Stock (includes 61,500 shares issuable upon exercise of options and 4,972 shares issuable upon the vesting of restricted stock units)**
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.6%
14	TYPE OF REPORTING PERSON IN

 

** See Items 5 and 6.

 

1	NAME OF REPORTING PERSON Chengxiang (Chase) Dai
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS OO (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION People’s Republic of China
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 64,286 shares of Common Stock (includes 41,700 shares issuable upon exercise of options and 4,972 shares issuable upon the vesting of restricted stock units)**
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 64,286 shares of Common Stock (includes 41,700 shares issuable upon exercise of options and 4,972 shares issuable upon the vesting of restricted stock units)**
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 64,286 shares of Common Stock (includes 41,700 shares issuable upon exercise of options and 4,972 shares issuable upon the vesting of restricted stock units)**
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3%
14	TYPE OF REPORTING PERSON IN

 

** See Items 5 and 6.

1	NAME OF REPORTING PERSON Mission Right Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS WC (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 1,036,040 shares of Common Stock
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 1,036,040 shares of Common Stock
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 1,036,040 shares of Common Stock
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.3%
14	TYPE OF REPORTING PERSON CO

 

1	NAME OF REPORTING PERSON Viktor Pan
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS PF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Republic of Austria
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 1,000,000 shares of Common Stock
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 1,000,000 shares of Common Stock
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 1,000,000 shares of Common Stock
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.2%
14	TYPE OF REPORTING PERSON IN

 

1	NAME OF REPORTING PERSON OPEA SRL
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS WC (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Italy
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 21,052 shares of Common Stock
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 21,052 shares of Common Stock
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 21,052 shares of Common Stock
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CER TAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1%
14	TYPE OF REPORTING PERSON CO

1	NAME OF REPORTING PERSON Zheng Zhou
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS PF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Hong Kong
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 371,007 shares of Common Stock
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 371,007 shares of Common Stock
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 371,007 shares of Common Stock
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.9%
14	TYPE OF REPORTING PERSON IN

1	NAME OF REPORTING PERSON Sailing Capital Overseas Investments Fund, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS AF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 1,712,920
	8	SHARED VOTING POWER 0
	9	SOLE DISPOSITIVE POWER 1,712,920
	10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 1,712,920 (1)
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% (2)
14	TYPE OF REPORTING PERSON PN

 

(1) 1,404,494 Shares are held by Wealth Map. Sailing Capital is the sole shareholder of Wealth Map. 308,426 Shares are held by Earls Mill. James Xiao Dong Liu is the sole director of Earls Mill and the Chairman of Sailing Capital.

 

1	NAME OF REPORTING PERSON Winsor Capital Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS AF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 358,974 shares of Common Stock issuable upon conversion of convertible notes
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 358,974 shares of Common Stock issuable upon conversion of convertible notes
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 358,974 shares of Common Stock issuable upon conversion of convertible notes
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.8%
14	TYPE OF REPORTING PERSON IA

1	NAME OF REPORTING PERSON TF Venture Capital Management Co., Ltd.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS AF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 358,974 shares of Common Stock issuable upon conversion of convertible notes
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 358,974 shares of Common Stock issuable upon conversion of convertible notes
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 358,974 shares of Common Stock issuable upon conversion of convertible notes
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.8%
14	TYPE OF REPORTING PERSON IA

1	NAME OF REPORTING PERSON Chiang Chen Hsiu-Lien
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) þ (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS AF (See Item 3)
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Republic of China
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 358,974 shares of Common Stock issuable upon conversion of convertible notes
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 358,974 shares of Common Stock issuable upon conversion of convertible notes
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 358,974 shares of Common Stock issuable upon conversion of convertible notes
12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES			¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.8%
14	TYPE OF REPORTING PERSON IN

 

 

This Amendment No. 4 (“Amendment No. 4”) amends the statement on Schedule 13D filed with the Securities and Exchange Commission (the “SEC”) on November 13, 2019 (the “Original Schedule 13D”), Amendment No. 1 filed with the SEC on January 30, 2020 (“Amendment No. 1”), Amendment No. 2 (“Amendment No. 2”) filed with the SEC on February 21, 2020 and Amendment No. 3 filed with the SEC on April 1, 2020 (“Amendment No. 3,” and together with the Original Schedule 13D, Amendment No. 1, Amendment No. 2 and this Amendment No. 4, this “Schedule 13D”) with respect to the common stock, par value $0.001 per share (the “Common Stock”) of Cellular Biomedicine Group, Inc., a Delaware corporation (the “Issuer”).

 

This Schedule 13D shall be deemed to amend and incorporate herein the Schedule 13D filed by Sailing Capital Overseas Investments Fund, L.P. with the SEC on February 14, 2018 (the "Sailing Capital Original Schedule 13D"), as amended on February 21, 2020 (the Sailing Capital Amendment No. 1) and April 1, 2020 (the “Sailing Capital Amendment No. 2” and together with the Sailing Capital Original Schedule 13D and the Sailing Amendment No. 1, the “Sailing Capital Schedule 13D”).

 

This Schedule 13D shall be deemed to amend and incorporate herein the Schedule 13D filed by Winsor Capital Limited with the SEC on February 3, 2020 (the " Winsor Capital Original Schedule 13D"), as amended on February 21, 2020 (the Winsor Capital Amendment No. 1) and April 1, 2020 (the “Winsor Capital Amendment No. 2” and together with the Winsor Capital Original Schedule 13D and the Winsor Capital Amendment No. 1, the “Winsor Capital Schedule 13D”).

 

The Reporting Person(s), as such terms are defined, in each of the Sailing Capital Schedule 13D and Winsor Capital Schedule 13D, respectively (collectively, the “Sailing Capital and Winsor Capital Reporting Persons”) and all information relating to such Sailing Capital and Winsor Capital Reporting Persons disclosed, in each of the Sailing Capital Schedule 13D and Winsor Capital Schedule 13D, respectively, and all other information reported therein is hereby incorporated into this Schedule 13D.

 

All references to “Reporting Persons” in this Schedule 13D shall be deemed to include the Sailing Capital and Winsor Capital Reporting Persons.

 

Capitalized terms used herein and not otherwise defined in this Amendment No. 4 have the meanings set forth in the Original Schedule 13D, Amendment No. 1, Amendment No. 2 or Amendment No. 3. This Amendment No. 4 amends Items 4, 5, 6 and 7 as set forth below.

 

 

Item 4.	Purpose of Transaction
	Item 4 of the Schedule 13D is hereby amended and supplemented as follows:
	On June 24, 2020, GIC, Casdin Capital, TF Capital, Mr. Liu, Ms. Zhang, Mr. Yao, Mr. Dai, Dangdai, Mission Right, Wealth Map, Earls Mill, Mr. Pan, Mr. Zhou, OPEA (all of the foregoing collectively, the “Continuing Consortium Members”) and Hillhouse Bio entered into a termination agreement (“Termination Agreement”), pursuant to which Hillhouse Bio has terminated its involvement and participation in the Transaction and withdrawn from the Consortium Agreement as of the date of the Termination Agreement.

 

	On June 24, 2020, Yunfeng Fund III, L.P. (“Yunfeng Capital”) and the Continuing Consortium Members entered into an amended and restated consortium agreement (the “A&R Consortium Agreement”) which superseded the Consortium Agreement in its entirety on substantially the same terms as the Consortium Agreement to provide for, among other things, the inclusion of Yunfeng Capital (the “New Consortium Member”) as a new member of the Buyer Consortium.
	For the purpose of the Schedule 13D, and where the context so provides, all references to the “Buyer Consortium” after June 24, 2020 shall be deemed to include the New Consortium Member and shall no longer include Hillhouse Bio.
	References to the A&R Consortium Agreement in this Amendment No. 4 are qualified in their entirety by reference to the A&R Consortium Agreement attached hereto as Exhibit 9 and incorporated herein by reference in its entirety.
	References to the Termination Agreement in this Amendment No. 4 are qualified in their entirety by reference to the Termination Agreement attached hereto as Exhibit 10 and incorporated herein by reference in its entirety.
Item 5.	Interest in Securities of the Issuer
	Item 5 of the Schedule 13D is hereby amended and restated in its entirety to read as follows:
(a)	See rows (11) and (13) of the cover pages to this Amendment No. 4 for the aggregate number of shares of Common Stock and percentages of the shares of Common Stock beneficially owned by the Reporting Persons.  The percentage used in this Amendment No. 4 is calculated based upon an aggregate of 19,391,343 shares of Common Stock outstanding as of May 4, 2020 as disclosed in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed with the Securities and Exchange Commission on May 6, 2020.
(b)	See rows (7) through (10) of the cover pages to this Amendment No. 4 for the number of shares of Common Stock as to which the Reporting Persons have the sole or shared power to vote or direct the vote and sole or shared power to dispose or to direct the disposition.
	Because of the arrangements in the A&R Consortium Agreement, the Reporting Persons and the other members of the Buyer Consortium that beneficially own Common Stock may be deemed to have formed a “group” for purposes of Section 13(d)(3) of the Act. Collectively, the “group” may be deemed to beneficially own an aggregate of 7,932,743 shares of outstanding Common Stock (including an aggregate of 811,000 shares of Common Stock issuable upon the exercise of options, 39,013 shares of Common Stock issuable upon the vesting of restricted stock units and 358,974 shares of Common Stock issuable upon the conversion of convertible notes held by members of the Buyer Consortium), which represents approximately 38.5% of the total shares of outstanding Common Stock (accounting for all Common Stock that would be outstanding upon exercise of all of the foregoing options, vesting of the foregoing restricted stock units and conversion of the foregoing convertible notes). Neither the filing of the Schedule 13D nor any of its contents, however, shall be deemed to constitute an admission by the Reporting Persons that they are the beneficial owners of any shares of Common Stock beneficially owned by any other member of the Buyer Consortium and any of his, her or their respective affiliates for purposes of Section 13(d) of the Act or for any other purpose, and such beneficial ownership is expressly disclaimed.

 

(c)	The Reporting Persons have not transacted in any shares of Common Stock in the last 60 days.
(d)	No person other than each of the respective Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the shares of Common Stock reported herein.
(e)	Not applicable.
Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
	Item 6 of the Schedule 13D is hereby amended and supplemented as follows:
	The Reporting Persons’ response to Item 4 is incorporated by reference into this Item 6.
Item 7.	Material to be Filed as Exhibits
	Item 7 of the Schedule 13D is hereby amended and supplemented as follows:
Exhibit 9:	A&R Consortium Agreement, dated June 24, 2020 by and among the New Consortium Member and the Continuing Consortium Members.
Exhibit 10:	Termination Agreement, dated June 24, 2020 by and among Hillhouse Bio and the Continuing Consortium Members.
Exhibit 11:	Joint Filing Agreement.

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this Amendment No. 4 is true, complete and correct.

 

Date: June 24, 2020

 

 

	/s/ Bizuo (Tony) Liu
	BIZUO (TONY) LIU
	/s/ Li (Helen) Zhang
	LI (HELEN) ZHANG
	/s/ Yihong Yao
	YIHONG YAO
	/s/ Chengxiang (Chase) Dai
	CHENGXIANG (CHASE) DAI
	MISSION RIGHT LIMITED
	By: /s/ Chiu Tao
	Name:	Chiu Tao
	Title:	Director
	/s/ Viktor Pan
	VIKTOR PAN
	OPEA SRL
	By: /s/ Edoardo Fontana
	Name:	Edoardo Fontana
	Title:	Managing Director
	By: /s/ Zheng Zhou
	ZHENG ZHOU

 

 

 

	SAILING CAPITAL OVERSEAS INVESTMENTS FUND, L.P.
	/s/ James Xiao Dong Liu
	Name:	James Xiao Dong Liu
	Title:	Chairman
	WINSOR CAPITAL LIMITED
	By: /s/ Ming Li
	Name:	Ming Li
	Title:	Secretary
	TF VENTURE CAPITAL MANAGEMENT CO., LTD.
	By: /s/ Chiang Chen Hsiu-Lien
	Name:	Chiang Chen Hsiu-Lien
	Title:	Director
	/s/ Chiang Chen Hsiu-Lien
	CHIANG CHEN HSIU-LIEN

 

 

Exhibit 9

AMENDED AND RESTATED CONSORTIUM AGREEMENT

This AMENDED AND RESTATED CONSORTIUM AGREEMENT (this “Agreement”, including all schedules annexed hereto, as hereafter from time to time amended, modified, supplemented, renewed or replaced) is made and entered into as of June 24, 2020 (the “Agreement Date”), by and among:

A.

Yunfeng Fund III, L.P., an exempted limited partnership organized and existing under the Laws of the Cayman Islands (together with its Affiliates and/or designees, collectively, “YF Capital”); and

 

B.

the parties set forth on Part I of Schedule A hereto (the “Continuing Consortium Members”).

 

Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to them in Section 11.1 hereof.

WHEREAS, the Continuing Consortium Members and Hillhouse Bio Holdings, L.P., an exempted limited partnership organized and existing under the Laws of the Cayman Islands (the “Hillhouse”), have previously entered into a Consortium Agreement dated November 9, 2019, as amended on March 30, 2020 (the “Original Consortium Agreement”) pursuant to which the Continuing Consortium Members and Hillhouse agreed to form a consortium, subject to and upon the terms of the Original Consortium Agreement, for the purpose of pursuing an acquisition transaction with respect to Cellular Biomedicine Group, Inc., a Delaware corporation (the “Company”), pursuant to which the parties to the Original Consortium Agreement or their Affiliates intended to acquire all of the outstanding shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) not already owned by them (the “Transaction”);

WHEREAS, in connection with the Transaction, certain of the Continuing Consortium Members and Hillhouse submitted a non-binding proposal dated November 11, 2019 to the board of directors of the Company (the “Board”), which was superseded by a subsequent new non-binding proposal from the Continuing Consortium Members and Hillhouse dated February 21, 2020 (the “Proposal”) to the special committee of the Board (the “Special Committee”);

WHEREAS, Hillhouse and the Continuing Consortium Members have executed and delivered a Termination Agreement (“Termination Agreement”), dated as of the Agreement Date, pursuant to which Hillhouse has terminated its involvement and participation in the Transaction and withdrawn from the Original Consortium Agreement as of the Agreement Date, and the Continuing Consortium Members have agreed to such termination and withdrawal pursuant to the terms of the Termination Agreement;

WHEREAS, effective as of the Agreement Date, the parties to the Original Consortium Agreement have mutually agreed that YF Capital shall, subject to the terms and conditions of this Agreement, be included as a member of the Consortium and YF Capital be designated as a Lead Investor ( as defined below) hereunder for the purpose of evaluating, negotiating and implementing the Transaction;

WHEREAS, as a condition to YF Capital joining the Consortium and in accordance with Section 10.5 of the Original Consortium Agreement, the Parties hereby agree to amend and restate, effective as of the Agreement Date, the Original Consortium Agreement in its entirety and to accept the rights created pursuant to this Agreement in lieu of the rights granted to them under the Original Consortium Agreement;

WHEREAS, the Consortium proposes to pursue the Transaction (for the purposes of this Agreement, and where the context so provides, all references to the “Transaction” shall be deemed to refer to an acquisition transaction for all of the outstanding shares of Common Stock of the Company by the Consortium constituted under this Agreement, and shall no longer include Hillhouse) in accordance with the term and conditions of this Agreement;

WHEREAS, (a) in connection with the Transaction, the Parties propose to form a new company (“Holdco”) under the Laws of a jurisdiction to be agreed by the Lead Investors (after taking into account, among other things, tax, accounting and legal and regulatory considerations involving) and to cause Holdco to form a direct or indirect, wholly owned subsidiary (“Merger Sub”) under the Laws of the State of Delaware, and (b) at the closing of the Transaction (the “Closing”), the Parties intend that Merger Sub will be merged with and into the Company, with the Company being the surviving company and becoming a wholly-owned subsidiary of Holdco;

WHEREAS, in accordance with the terms of this Agreement, the Lead Investors, with the assistance of the other Parties, will cooperate and participate in (a) the evaluation of the Company, including conducting due diligence of the Company and its business, if required, (b) discussions regarding the Proposal with the Company, and (c) the negotiation and finalization of the terms of definitive documentation in connection with the Transaction (collectively, together with any amendments or waivers thereof, the “Definitive Documents”);

WHEREAS, in connection with the Closing, (a) each Party agrees to contribute (or cause his, her or its Affiliates to contribute) his, her or its Rollover Shares and Cash Contribution (each as defined below) , and (b) subscribe for or cause to be subscribed for newly issued ordinary shares of Holdco (the “Holdco Shares”) immediately prior to the Closing;

WHEREAS, the Parties agree to (a) vote their Covered Securities (as defined below) in accordance with and subject to the terms and conditions of this Agreement and (b) subject their Covered Securities to the transfer prohibitions and restrictions contained in this Agreement; and

WHEREAS, in connection with the execution of this Agreement, certain members of the Consortium may be required to file with the U.S. Securities and Exchange Commission an amendment to their ownership report on Schedule 13D to disclose their entry into this Agreement and certain additional information.

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

Article I
PROPOSAL; HOLDCO OWNERSHIP

Section 1.1              Participation in Transaction.

(a)                The Parties agree to participate in the Transaction on the terms set forth in this Agreement. The Lead Investors shall cooperate and proceed in good faith to (and the other Parties shall cooperate with the Lead Investors to) (i) undertake due diligence with respect to the Company and its business, if required; (ii) engage in discussions with the Company, the Board and/or the Special Committee regarding the Proposal and/or the Transaction; (iii) negotiate and finalize the terms of the Definitive Documents; and (iv) take any action or refrain from taking any action in order for Holdco or Merger Sub to comply with their respective obligations, satisfying the closing conditions or exercise their respective rights under the Definitive Documents.

(b)                In order to facilitate the foregoing and except as otherwise agreed, each Party hereby authorizes and delegates to the Lead Investors and the Joint Advisor the primary responsibility for negotiating and finalizing the terms of the Definitive Documents with the Company with respect to the Transaction; provided that if any Party fails to reach agreement with the Lead Investors with respect to any material term of the Transaction and such failure continues for more than five (5) Business Days after a notice delivered by the Lead Investors jointly to resolve such disagreement, then such Party shall be deemed to have withdrawn from the Consortium unless otherwise agreed to by all of the Lead Investors. The Lead Investors shall also have the right (i) subject to Section 1.3(c), to adjust the number of Rollover Shares and/or the amount of Cash Contribution of any Party and update the Equity

Contribution Schedule (as defined below), and (ii) to determine the number of Rollover Shares and the amount of Cash Contribution of an Additional Consortium Member pursuant to Section 1.4.

(c)                For the purposes of this Agreement, any action to be taken by “the Lead Investors” (other than those contemplated under Section 1.1(a)), including without limitation any agreement, approval, consent or determination, any notice to be delivered, any admission of any Additional Consortium Member, or any adjustment of the number of Rollover Shares and/or the amount of Cash Contribution of any Party, shall, in each case, be taken only with the unanimous consent of all the Lead Investors.

Section 1.2              Proposal.

(a)                The Continuing Consortium Members and Hillhouse submitted the Proposal to the Special Committee on February 21, 2020.

(b)                Upon the election of the Lead Investors, the Consortium shall promptly provide a written notice to the Special Committee and/or the Board indicating the addition of YF Capital to the Consortium and the termination of Hillhouse’s participation in the Transaction and its membership in the Consortium, together with any other changes (if any) to the non-binding terms of the Transaction that the Lead Investors shall have mutually determined to make pursuant to their authority hereunder, and following the delivery of such written notice, reference to the Proposal shall be deemed to be reference to the Proposal as modified by such written notice.

Section 1.3              Holdco Ownership and Arrangements.

(a)                Prior to the execution of the Merger Agreement, the Lead Investors will arrange to incorporate Holdco and depending on the agreed structure, will arrange for Holdco to incorporate Merger Sub.

(b)                At the Closing, each Party shall contribute (or cause his, her or its Affiliates to contribute) to Holdco, in exchange for newly issued Holdco Shares, (i) such number of shares of Common Stock held by such Party and/or his, her or its Affiliates and as determined by the Lead Investors from time to time (such Party’s “Rollover Shares”) and (ii) such amount of cash as determined by the Lead Investors from time to time (such amount, such Party’s “Cash Contribution”).

With respect to any Party, the sum of (A) the deemed value of such Party’s Rollover Shares (which shall be calculated based on the per share purchase price offered to the stockholders of the Company in the Transaction (the “Per Share Merger Price”), but without regard to any vesting schedule or condition) and (B) the amount of such Party’s Cash Contribution shall be hereinafter referred to as the “Equity Contribution” of such Party. Each Party’s ownership percentage in Holdco as of immediately following the Closing and the number of Holdco Shares to be issued to such Party in exchange for such Party’s Equity Contribution shall be calculated proportionally based on (x) the amount of such Party’s Equity Contribution, relative to (y) the aggregate amount of all Parties’ Equity Contributions. For the avoidance of doubt, each Party agrees that the obligation of such Party to contribute his, her or its Rollover Shares and Cash Contribution to Holdco under this Section 1.3(b) shall be subject to the satisfaction or waiver of the conditions to the obligations of Holdco and its subsidiaries to consummate the Transaction to be set forth in the Definitive Documents.

(c)                Each Party hereby agrees that (i) the Lead Investors may prepare and maintain a schedule setting forth the number of Rollover Shares and the amount of Cash Contribution of each Party (the “Equity Contribution Schedule”); (ii) the number of Rollover Shares or the amount of Cash Contribution of any Party shall not, without prior consent of such Party, be increased to more than such Party’s Rollover Shares or Cash Contribution, as applicable, as set forth in the first Equity Contribution Schedule circulated by the Lead Investors to the other Consortium Members immediately prior to the Agreement Date; and (iii) the number of Rollover Shares and/or the amount of Cash Contribution of any Party may be adjusted from time to time by the Lead Investors (including upon the admission of any Additional Consortium Member pursuant to Section 1.4 or the withdrawal of any Party from the

Consortium pursuant to Section 1.1(b), or as a result of any Transfer as permitted under Section 4.4(a) from time to time prior to the Closing), and the Lead Investors shall have the right to update the Equity Contribution Schedule from time to time to reflect such adjustments and the corresponding changes in the Sponsors’ respective Sponsor Percentages.

(d)                The Sponsor Percentage of each Sponsor shall be a fraction, (i) the numerator of which is the amount of Cash Contribution to be made by such Sponsor and (ii) the denominator of which is the aggregate amount of Cash Contribution to be made by all the Sponsors; provided that the initial Sponsor Percentage of each Sponsor as of the Agreement Date shall be equal to the percentage set forth opposite the name of such Sponsor under the column “Sponsor Percentage” of the Equity Contribution Schedule circulated by the Lead Investors to the other Consortium Members immediately prior to the Agreement Date.

Section 1.4              Admission of New Consortium Members. The Lead Investors may agree to admit one or more additional investor(s) to the Consortium as additional party(ies). Any additional Consortium Member admitted to the Consortium pursuant to this Section 1.4 shall execute an adherence agreement to this Agreement in the form attached hereto as Schedule B (the “Adherence Agreement”) and upon its execution of the Adherence Agreement, such additional party shall become an “Additional Consortium Member” for purposes of this Agreement and shall be designated as a “Consortium Member” and a “Party” to this Agreement as determined by the Lead Investors. The Lead Investors shall have the right to (a) determine (i) the number of Rollover Shares and the amount of Cash Contribution of an Additional Consortium Member admitted pursuant to this Section 1.4 and (ii) whether such Additional Consortium Member shall be a “Sponsor” under this Agreement and (b) update the Equity Contribution Schedule to reflect such determination.

Article II
PARTICIPATION IN TRANSACTION; ADVISORS; APPROVALS

Section 2.1              Information Sharing and Roles. Each Party shall cooperate in good faith in connection with the Proposal and the Transaction, including by (a) complying with any information delivery or other requirements consented to by the Lead Investors in connection with the Proposal or the Transaction, and shall not, and shall direct the Representatives of such Party not to, whether by their action or omission, breach such arrangements or obligations, (b) to the extent requested by any Lead Investor, participating in meetings and negotiations with the Board and/or Special Committee and their respective advisors, (c) executing and complying with any confidentiality agreements reasonably required by the Company, (d) providing the Lead Investors or Holdco with all information reasonably required concerning such Party or any other matter relating to such Party in connection with the Transaction and any other information any Lead Investor may reasonably require in respect of any other Party and his, her or its Affiliates for inclusion in the Definitive Documents, (e) providing timely responses to requests by any Lead Investor or Joint Advisor for information, (f) applying the level of resources and expertise that such Party reasonably considers to be necessary and appropriate to meet the obligations of such Party under this Agreement, and (g) consulting with the Lead Investors and otherwise cooperating in good faith on any public statements regarding the Parties’ intentions with respect to the Company, any issuance of which shall be subject to Section 7.1. Unless the Lead Investors otherwise agree, none of the Parties shall commission a report, opinion or appraisal (within the meaning of Item 1015 of Regulation M-A of the Exchange Act). Notwithstanding the foregoing, no Party is required to make available to the other Parties any of their internal investment committee materials or analyses or any information which such Party considers to be commercially sensitive information or which is otherwise held subject to an obligation of confidentiality.

Section 2.2              Appointment of Advisors.

(a)                The Parties agree that the Lead Investors shall have the right to engage (including the scope and engagement terms), terminate or change all joint Advisors to the Consortium in connection with the Transaction (such joint Advisors to the Consortium engaged by the Lead Investors in accordance with this Section 2.2(a), the “Joint Advisors”). The Parties agree and acknowledge that

O’Melveny & Myers LLP has been selected by the Consortium as U.S. legal counsel to represent the Consortium in connection with the Transaction and shall be a “Joint Advisor” under this Agreement.

(b)                Except as otherwise provided in Section 2.2(a), if a Party requires separate representation in connection with specific issues arising out of the Transaction, such Party may retain other Advisors to advise him, her or it, provided that such Party shall (i) provide prior notice to other Parties of such retention and (ii) subject to Section 3.1(c), be solely responsible for the fees and expenses of such separate Advisors unless each of the Lead Investors agrees in writing that the fees and expenses incurred by such separate Advisor will be treated as the transaction expenses of the Consortium and reimbursable pursuant to Article III.

Section 2.3              Approvals. Each Party shall use reasonable best efforts and provide all cooperation as may be reasonably requested by the Lead Investors to obtain all applicable governmental, statutory, regulatory or other approvals, licenses, waivers or exemptions required or, in the reasonable opinion of the Parties, desirable for the consummation of the Transaction.

Article III
TRANSACTION COSTS

Section 3.1              Expenses and Fee Sharing.

(a)                Upon consummation of the Transaction, the Company (or its successor in interests) shall (and Mr. Liu shall procure the Company or its successor in interests to) reimburse the Parties for, or pay on behalf of the Parties, as the case may be, all of their out-of-pocket costs and expenses incurred in connection with the Transaction, including, without limitation, the reasonable fees, expenses and disbursements of Joint Advisors retained by the Consortium (other than fees and costs of any separate Advisors who were retained by a Party unless and only to the extent such appointment and expenses are agreed to in advance in writing by all of the Lead Investors to be treated as the transaction expenses of the Consortium) and all the fees and expenses contemplated under Section 2(b) and Section 2(d) of the Termination Agreement.

(b)                If the Transaction is not consummated (and Section 3.1(c) below does not apply), each Sponsor agrees to share ratably among the Sponsors based on such Sponsor’s Sponsor Percentage or as may otherwise be agreed among the Parties the out-of-pocket costs and expenses payable by them in connection with the Transaction incurred prior to or in connection with the termination of the Transaction, including any fees and expenses payable to Joint Advisors retained by the Consortium (other than fees and costs of any separate Advisors who were retained by one or more Parties unless and only to the extent such appointment and expenses are agreed to in advance in writing by all of the Lead Investors to be treated as the transaction expenses of the Consortium) and the fees and expenses incurred in connection with or pursuant to Section 2(d) of the Termination Agreement, but excluding any termination fee payable to the Company pursuant to the Merger Agreement. The Parties further agree that the Sponsors shall be entitled to receive, on a pro rata basis in accordance with their respective Sponsor Percentages, any termination or other fees or amounts payable, directly or indirectly, to Holdco or Merger Sub by the Company pursuant to the Merger Agreement, net of the expenses incurred by Consortium, Holdco and Merger Sub and required to be borne by the Sponsors pursuant to this Section 3.1(b).

(c)                If the Transaction is not consummated due to the breach of this Agreement by one or more Parties, then such breaching Party(ies) shall reimburse any non-breaching Party for all out-of-pocket costs and expenses, including any termination fee payable to the Company pursuant to the Merger Agreement and any fees and expenses of Joint Advisors retained by the Consortium and including the fees and costs of any separate Advisors who were retained by each such non-breaching Party in connection with the Transaction, without prejudice to any rights or remedies otherwise available to such non-breaching Party.

Article IV
EXCLUSIVITY; VOTING; TRANSFER RESTRICTIONS; OTHER COVENANTS

Section 4.1              Exclusivity Period. Subject to Section 4.8, during the period beginning on the date hereof and ending on the earlier of (i) November 9, 2020, which may be extended by the Lead Investors in writing and (ii) the termination of this Agreement pursuant to Section 6.2 (the “Exclusivity Period”), each Party shall (unless otherwise consented to in writing in advance by all of the Lead Investors) and shall cause his, her or its Affiliates to:

(a)                work exclusively with the other Parties to implement the Transaction, including to (i) evaluate the Company and its business and (ii) prepare, negotiate and finalize the Definitive Documents;

(b)                not to, and shall use his, her or its reasonable efforts to cause the Representatives of him, her or it and his, her or its Affiliates (subject to, in the case of a Representative who is a director of the Company or any of its subsidiaries and solely in such Representative’s capacity as a director, his or her fiduciary duties) not to, directly or indirectly, either alone or with or through any authorized Representatives (i) make an Acquisition Proposal, or solicit, encourage, facilitate or join with or invite any other person to be involved in the making of, any Acquisition Proposal, (ii) provide any information to any Third Party with a view to the Third Party or any other person pursuing or considering to pursue an Acquisition Proposal, (iii) finance or offer to finance any Acquisition Proposal, including by offering any equity or debt finance, or contribution of Covered Securities or provision of a voting agreement, in support of any Acquisition Proposal, (iv) enter into any written or oral agreement, arrangement or understanding (whether legally binding or not) regarding, or do, anything that is directly inconsistent with the provisions of this Agreement or the Transaction as contemplated under this Agreement, (v) take any action that would reasonably be expected to have the effect of preventing, disabling or delaying such Party from performing his, her or its obligations under this Agreement, or (vi) solicit, encourage, facilitate, induce or enter into any negotiation, discussion, agreement or understanding (whether or not in writing and whether or not legally binding) with any other person regarding the matters described in Section 4.1(b)(i) to Section 4.1(b)(v) or Section 4.2(a)(i) or Section 4.2(a)(ii);

(c)                subject to Section 4.8, immediately cease and terminate, and cause to be ceased and terminated, all existing activities, discussions, conversations, negotiations and other communications with all persons conducted heretofore with respect to an Acquisition Proposal; and

(d)                subject to Section 4.8, promptly notify the other Parties if such Party or, to such Party’s knowledge, any Representative of such Party receives any approach or communication with respect to any Acquisition Proposal, including in such notice the identity of the other persons involved and the nature and content of the approach or communication, and provide the other Parties with copies of any written communication.

Section 4.2              Agreement to Vote.

(a)                Subject to the terms and conditions set forth herein, each Party hereby irrevocably and unconditionally agrees that, to the extent such Party or any Affiliate of such Party Beneficially Owns any Covered Securities, at any annual or special meeting of the stockholders of the Company and at any other meeting of the stockholders of the Company, however called, including any adjournment, recess or postponement thereof, in connection with any written consent of the stockholders of the Company and in any other circumstance upon which a vote, consent or other approval of all or some of the stockholders of the Company is sought, such Party shall (solely in his, her or its capacity as Beneficial Owner of his, her or its Covered Securities), and shall cause any holder of record of the Covered Securities Beneficially Owned by such Party or any Affiliate of such Party to, in each case to the extent that the Covered Securities are entitled to vote thereon or consent thereto:

(i)                 appear at each such meeting or otherwise cause all of the Covered Securities Beneficially Owned by such Party and his, her or its Affiliates to be counted as present thereat in accordance with procedures applicable to such meeting so as to ensure such Party is duly

counted for purposes of calculating a quorum and for purposes of recording the result of any applicable vote or consent and respond to each request by the Company for written consent, if any; and

(ii)               vote, or cause to be voted, whether on a show of hands or a poll and whether in person or by proxy, or deliver, or cause to be delivered, a written consent covering, all of the Covered Securities Beneficially Owned by such Party and his, her or its Affiliates (w) in favor of the approval, adoption and authorization of the Merger Agreement and the approval of the Transaction and any other transactions contemplated by the Merger Agreement, (x) in favor of any other matters required to consummate the Transaction and any other transactions contemplated by the Merger Agreement, (y) against any Acquisition Proposal or any other transaction, proposal, agreement or action made in opposition to the Transaction or in competition or inconsistent with the Transaction, and (z) against any other action, agreement or transaction that is intended to facilitate an Acquisition Proposal or is intended to or could prevent, impede, or, in any material respect, interfere with, delay or adversely affect the Transaction or any other transactions contemplated by the Merger Agreement or the performance by such Party of his, her or its obligations under this Agreement.

(b)                Subject to the terms and conditions set forth herein, each Party shall, and shall cause his, her or its Affiliates, during the Exclusivity Period, retain at all times the right to vote or consent with respect to such Party’s or his, her or its Affiliates’ Covered Securities in such Party’s or his, her or its Affiliates’ sole discretion (as applicable) and without any other limitation on those matters, other than those limitations contained in Section 4.2(a).

(c)                The obligations of each Party set forth in this Section 4.2 are irrevocable.

Section 4.3              Waiver of Dissenter Rights. Each Party hereby irrevocably and unconditionally waives, and agrees to cause to be waived and to prevent the exercise of, any dissenters’ rights, rights of appraisal and any similar rights relating to the Transaction and any other transactions contemplated by the Merger Agreement that such Party or any other person may have by virtue of, or with respect to, any of the Covered Securities Beneficially Owned by such Party and his, her or its Affiliates.

Section 4.4              Prohibition on Transfers.

(a)                Subject to the terms of this Agreement, each Party represents, covenants and agrees that during the Exclusivity Period, such Party will not, and will cause his, her or its Affiliates not to, Transfer any of the Covered Securities Beneficially Owned by such Party and his, her or its Affiliates, or any voting right or power (including whether such right or power is granted by proxy or otherwise) or economic interest therein, unless such Transfer (i) is a Permitted Transfer, or (ii) has been previously approved in writing by all of Lead Investors.

(b)                With respect to each Party, this Agreement and the obligations hereunder shall attach to the Covered Securities and shall be binding upon any person to which legal or Beneficial Ownership shall pass, whether by operation of Law or otherwise, including, the Party’s successors or assigns. No Party may request that the Company register the Transfer of (book-entry or otherwise) any or all of the Covered Securities (whether represented by a certificate or uncertificated), unless such Transfer is made in compliance with this Agreement. Notwithstanding any Transfer of Covered Securities, the transferor shall remain liable for the performance of all of its obligations under this Agreement.

Section 4.5              Additional Company Securities. Each Party covenants and agrees that during the Exclusivity Period, such Party shall notify each other Party in writing of the number of Additional Company Securities Beneficial Ownership in which is acquired by such Party or any of his, her or its Affiliate after the date hereof as soon as practicable, but in no event later than five (5) Business Days, after such acquisition. Any such Additional Company Securities shall automatically become subject to the terms of this Agreement and shall constitute Covered Securities for all purposes of this Agreement.

             

 

Section 4.6      Share Dividends, etc. In the event of a reclassification, recapitalization, reorganization, stock split (including a reverse stock split) or combination, exchange or readjustment of stock or other similar transaction, or if any stock dividend, subdivision or distribution (including any dividend or distribution of securities convertible into or exchangeable for shares of Common Stock) is declared, in each case affecting the Covered Securities, the term “Covered Securities” shall be deemed to refer to and include such shares of Common Stock as well as all such stock dividends and distributions and any securities of the Company into which or for which any or all of such shares of Common Stock may be changed or exchanged or which are received in such transaction.

Section 4.7              No Inconsistent Agreements. During the Exclusivity Period, without the prior written consent of all of the Lead Investors, each Party shall not, and shall cause his, her or its Affiliates not to, (a) enter into any contract or other instrument, option or other agreement (except this Agreement) with respect to, or consent to, a Transfer of, any of the Covered Securities, Beneficial Ownership thereof or any other interest therein, (b) create or permit to exist any Lien that could prevent such Party or any of his, her or its Affiliates (as applicable) from voting the Covered Securities in accordance with this Agreement or from complying in all material respects with the other obligations under this Agreement, other than any restrictions imposed by applicable Law on such Covered Securities, (c) enter into any voting or similar agreement (except this Agreement) with respect to the Covered Securities or grant any proxy, consent or power of attorney with respect to any of the Covered Securities or (d) take any action, directly or indirectly, that would or would reasonably be expected to (i) result in a breach hereof, (ii) make any representation or warranty of such Party set forth in Article IX untrue or incorrect in any material respect or (iii) prevent, impede or, in any material respect, interfere with, delay or adversely affect the performance by such Party of his, her or its obligations under, or compliance by such Party with the provisions of, this Agreement.

Section 4.8              Capacity as a Shareholder. The Parties agree and acknowledge that notwithstanding anything to the contrary provided herein, (a) each of Mr. Liu, Ms. Zhang, Mr. Yao and Mr. Dai is signing this Agreement solely in his or her capacity as a Beneficial Owner of the Covered Securities, and (b) nothing in this Agreement shall limit or affect any actions taken by any of Mr. Liu, Ms. Zhang, Mr. Yao and Mr. Dai in his or her capacity as a director or officer of the Company, to the extent this Agreement could be construed to restrict the exercise by such person of his or her fiduciary duties in such capacity.

Article V
ROLLOVER SHARES

Section 5.1              Cancellation of Rollover Shares. Subject to the terms and conditions set forth herein, each Party agrees, on behalf of himself, herself or itself and any of his, her or its Affiliates who Beneficially Owns such Party’s Rollover Shares, that such Party’s Rollover Shares shall, after being contributed to Holdco pursuant to Section 1.3(b), be cancelled at the Closing for no consideration from the Company; and (b) other than such Party’s Rollover Shares, all the remaining Covered Securities Beneficially Owned by such Party or his, her or its Affiliates, if any, shall (i) if such Covered Securities are shares of Common Stock issued and outstanding as of immediately prior to the Closing, be cancelled and cease to exist in exchange for the cash consideration provided under the Merger Agreement, or (ii) if such Covered Securities are represented by other securities, be treated as set forth in the Merger Agreement. Each Party shall and shall cause his, her or its Affiliates who Beneficially Owns Covered Securities to take all actions necessary to cause his, her or its Covered Securities (or such Affiliates’ Covered Securities) to be treated as set forth herein.

Section 5.2              Subscription of Holdco Shares. Subject to the terms and conditions set forth herein, immediately prior to the Closing, in consideration for the cancellation of the Rollover Shares held by a Party or any Affiliate of such Party in accordance with Section 5.1, the Consortium shall cause Holdco to issue to such Party (or, if designated by such Party in writing, an Affiliate of such Party), and such Party or his, her or its Affiliate (as applicable) shall subscribe for immediately prior to the Closing, certain number of newly issued Holdco Shares representing an ownership percentage in Holdco calculated proportionally based on (a) th e amount of such Party’s Equity Contribution, and (b) the

aggregate amount of all Parties’ Equity Contributions. Each Party hereby acknowledges and agrees, on behalf of himself, herself or itself and any of his, her or its Affiliates who Beneficially Owns such Party’s Rollover Shares, that (i) delivery of such Holdco Shares shall constitute complete satisfaction of all obligations towards, or sums due to, such Party and such Affiliate by Holdco, its subsidiaries, each other Consortium Member and any of such other Consortium Member’s Affiliates in respect of the Rollover Shares Beneficially Owned by such Party or such Affiliate and cancelled at the Closing as contemplated by Section 5.1 above and (ii) such Party and such Affiliate shall have no right to any consideration as provided in the Merger Agreement in respect of such Party’s Rollover Shares.

Section 5.3              Rollover Closing. Subject to the satisfaction in full (or waiver, if permissible) of all of the conditions set forth in the Merger Agreement (other than conditions that by their nature are to be satisfied or waived, as applicable, at the Closing) and the terms and conditions set forth herein, the closing of the subscription by and issuance to a Party of Holdco Shares contemplated hereby shall take place immediately prior to the Closing or at such other time as agreement among the Parties.

Section 5.4              Deposit of Rollover Shares. Subject to the terms and conditions set forth herein, no later than five (5) Business Days prior to the Closing, each Party shall, and shall cause his, her or its Affiliates to, deliver or cause to be delivered to Holdco all certificates representing such Party’s Rollover Shares (if any), for disposition in accordance with the terms of this Agreement; such certificates and documents shall be held by Holdco or any agent authorized by Holdco until the Closing.

Article VI
TERMINATION

Section 6.1              Failure to Agree. Upon a Party’s withdrawal pursuant to Section 1.1(b), this Agreement shall, subject to Section 6.3(a), terminate with respect to such withdrawing Party.

Section 6.2              Other Termination Events. Subject to Section 6.3(b), this Agreement shall terminate with respect to all Parties upon the earliest to occur of (a) a written agreement among the Parties to terminate this Agreement, (b) the Closing and (c) the delivery of a joint written notice from all of the Lead Investors to terminate this Agreement.

Section 6.3              Effect of Termination.

(a)                Upon termination of this Agreement with respect to a Party pursuant to Section 6.1, Article III (Transaction Costs), Article IV (Exclusivity; Voting; Acquisition and Transfer Restrictions; Other Covenants), Article VI (Termination), Article VII (Announcements & Confidentiality), Article VIII (Notices) and Article X (Miscellaneous) shall continue to bind such Party, and, if such Party is a Sponsor, such Party shall be liable under Article III for his, her or its portion ratably based on such Party’s Sponsor Percentage of any costs and expenses incurred by the Parties prior to the termination of this Agreement with respect to such Party; provided that, if there was a breach of this Agreement by such Party prior to the termination, Section 3.1(c) shall apply.

(b)                Upon termination of this Agreement pursuant to Section 6.2, Article III (Transaction Costs), Article VI (Termination), Article VII (Announcements & Confidentiality), Article VIII (Notices) and Article X (Miscellaneous) shall continue to bind the Parties, and subject to Section 3.1(a), if such Party is a Sponsor, such Party shall be liable under Article III for his, her or its portion ratably based on such Party’s Sponsor Percentage of any costs and expenses incurred by the Parties prior to the termination of this Agreement with respect to such Party; provided that, if there was a breach of this Agreement by such Party prior to the termination, in which case Section 3.1(c) shall apply.

(c)                Upon the termination of this Agreement pursuant to this Article VI and subject to the Parties’ confidentiality obligations under Section 7.2, the Parties shall jointly own but may use separately all of the due diligence information, advice and work product obtained or delivered or produced in relation to the Transaction (other than any such information relating to a Party or any of his, her or its Affiliates, which shall remain the property of such Party and may not be used by other Parties without the written consent of such Party), and any Joint Advisor or separate Advisor appointed

by any Party in accordance with the terms of this Agreement may continue to advise any of the Parties. No termination of this Agreement shall relieve any Party from liability or damages to the other Parties for a breach of this Agreement prior to such termination.

Article VII
ANNOUNCEMENTS AND CONFIDENTIALITY

Section 7.1              Announcements. No announcements regarding the subject matter of this Agreement shall be issued by any Party without the prior written consent of all of the Lead Investors, which consent shall not be unreasonably withheld, delayed or conditioned, except to the extent that any such announcements are required by Law, a court of competent jurisdiction, a regulatory body or international stock exchange, and then only after the form and terms of such disclosure have been notified to each Lead Investor and each Lead Investor has had a reasonable opportunity to comment thereon, in each case to the extent reasonably practicable.

Section 7.2              Confidentiality.

(a)                Except as permitted under Section 7.3, each Party shall not, and shall direct his, her or its Affiliates and the Representatives of the foregoing not to, without the prior written consent of the other Parties, disclose, reproduce, distribute or supply any Confidential Information received by such Party (the “Recipient”) from any other Party (the “Discloser”) to any other person. The Recipient may disclose any Confidential Information to any of his, her or its Affiliates or any of the Representatives of the foregoing who are concerned with the Transaction and whose knowledge of such information is reasonably necessary or desirable for such purpose and who (prior to such disclosure) agree in writing to be bound by similar confidentiality obligations as set out herein or are otherwise bound by applicable law or rules of professional conduct to keep such information confidential; provided that, subject to Section 7.3, no Recipient may disclose any Confidential Information to any equity or debt financing source without the prior written consent of the Lead Investors. Each Party shall not and shall direct his, her or its Affiliates and the Representatives of the foregoing to whom Confidential Information is disclosed pursuant to the preceding sentence not to, use any Confidential Information for any purpose other than exclusively for the purposes of this Agreement or the Transaction. Upon discovery of any unauthorized use or disclosure of Confidential Information or any breach of this Section 7.2 by the Recipient or any of his, her or its Affiliates or any of the Representatives of the foregoing, such Recipient shall give a written notice to the other Parties promptly, and shall cooperate with the other Parties to assist the Discloser to regain possession of such disclosed Confidential Information and prevent its further unauthorized use or disclosure, or remedy such breach, in each case to the extent reasonably practicable.

(b)                Subject to Section 7.2(c), the Recipient shall safeguard and return to the Discloser, on demand, any Confidential Information which falls within clause (a) of the definition of Confidential Information, and in the case of electronic data that constitutes Confidential Information, to return or destroy such Confidential Information at the option of the Recipient.

(c)                Each Recipient may retain in a secure archive a copy of the Confidential Information referred to in Section 7.2(b) if the Confidential Information is required to be retained by it for regulatory purposes or in connection with a bona fide document retention policy.

(d)                Each Party acknowledges that, in relation to Confidential Information received from the other Parties, the obligations contained in this Section 7.2 shall continue to apply for a period of twelve (12) months following termination of this Agreement pursuant to Section 6.1 or Section 6.2, unless otherwise agreed in writing.

Section 7.3              Permitted Disclosures. A Party may make disclosures (a) to those of his, her or its Affiliates and the Representatives of the foregoing as such Party reasonably deems necessary to give effect to or enforce this Agreement (including, with respect to each of YF Capital and TF Capital, potential sources of capital), but only on a confidential basis; (b) if required by applicable Law or the

rules and regulations of any securities exchange or Governmental Authority of competent jurisdiction over a Party, but only after the form and terms of such disclosure have been notified to the other Parties and the other Parties have had a reasonable opportunity to comment thereon, in each case to the extent reasonably practicable; or (c) if the information is publicly available other than through a breach of this Agreement by such Party, any of his, her or its Affiliates or any of the Representatives of the foregoing.

Section 7.4              Publicity. Notwithstanding anything to the contrary in this Article VII, without the prior written consent of a Private Party, none of the other Parties or any of his, her or its Affiliates or the Representatives of the foregoing shall use, publish or reproduce the name of such Private Party or its Affiliates or any similar name, trademark or logo in any of their announcements, press release, marketing, advertising or promotion materials or otherwise for any marketing, advertising or promotional purposes. With respect to the announcements or press release regarding the subject matter of this Agreement, before issuance of such announcements or press release, each Private Party shall be granted reasonab le opportunity to review and comment on any disclosure relating to such Private Party and its Affiliates. Without the prior written consent of a Private Party, no announcements or press release shall be issued by any other Party if containing any information of such Private Party and its Affiliates.

 

Article VIII
NOTICES

Section 8.1              Notices. Any notice, request, instruction or other document to be provided hereunder by any Party to another Party shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, or by facsimile, overnight courier or electronic mail, to the address provided under such other Party’s signature page hereto, or to such other address or facsimile number or electronic mail address as such Party may hereafter specify for the purpose by notice to the other Parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt.

Article IX
REPRESENTATIONS AND WARRANTIES

Section 9.1              Representations and Warranties. Each Party hereby represents and warrants, on behalf of such Party only, to the other Parties that (a) such Party has the requisite power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by such Party have been duly authorized by all necessary action on the part of such Party and no additional proceedings are necessary to approve this Agreement; (c) this Agreement has been duly executed and delivered by such Party and constitutes a valid and binding agreement of such Party enforceable against such Party in accordance with the terms hereof; (d) the execution, delivery and performance (including the provision and exchange of information) of this Agreement by such Party will not (i) conflict with, require a consent, waiver or approval under, or result in a breach of or default under, any of the terms of any material contract or agreement to which such Party is a party or by which such Party is bound, or any office such Party holds, (ii) violate any Law applicable to such Party or any of his, her or its properties and assets, or (iii) result in the creation of, or impose any obligation on such Party to create, any Lien of any nature whatsoever upon such Party’s properties or assets; and (e) no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transaction based upon arrangements made by or on behalf of such Party.

Section 9.2              Company Securities. Each Party hereby represents and warrants, on behalf of such Party only, to the other Parties that as of the date of this Agreement, such Party or his, her or its Affiliates are the sole Beneficial Owner of and has good and valid title to the Company Securities set forth opposite the name of such Party in the table under Part II of Schedule A hereto, free and clear of

any Liens, other than any Liens pursuant to this Agreement, or arising under the memorandum or articles of association of the Company and transfer restrictions imposed by generally applicable securities Laws. As of the date of this Agreement, subject to the last sentence of this Section 9.2, the Company Securities listed in the table under Part II of Schedule A hereto constitute all of the shares of Common Stock, Company Options and Company RSUs (and any other securities convertible, exercisable or exchangeable into or for any shares of Common Stock) Beneficially Owned or owned of record by such Party and his, her or its Affiliates. Except as otherwise indicated in the table under Part II of Schedule A hereto, such Party is and will be the sole record holder and Beneficial Owner of the Covered Securities and has (i) the sole voting power, (ii) the sole power of disposition and (iii) the sole power to agree to all of the matters set forth in this Agreement with respect to the Covered Securities. Such Party has not taken any action described in Section 4.7 hereof. Such Party understands and acknowledges that each other Consortium Member and his, her or its Affiliates have expended, and are continuing to expend, time and resources in connection with the Transaction in reliance upon the execution and delivery by such Party of this Agreement and the representations, warranties, covenants and other agreements of such Party contained herein.

Section 9.3              Reliance. Each Party acknowledges that the other Parties have entered into this Agreement on the basis of and reliance upon (among other things) the representations and warranties in Section 9.1 and Section 9.2 and have been induced by them to enter into this Agreement.

Article X
MISCELLANEOUS

Section 10.1           No Recourse against Lead Investors. Each of the Parties hereby agrees and acknowledges that such Party shall have no right of recovery or claim against any Lead Investor, any of its Affiliates or any Representative of the foregoing (the “Relevant Parties”) under, by reason of or in connection with, and no liability shall attach to any Relevant Party under, by reason of or in connection with, this Agreement or the transactions contemplated hereby (including the exercise of any right, option or discretion of one or more Lead Investors hereunder, or any direct or indirect consequence of such exercise of right, option or discretion), whether by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise, in each case other than any right of recovery, claim or liability arising out of any breach by any Lead Investor of any of its express obligations under this Agreement.

Section 10.2           Entire Agreement; Effect on Original Consortium Agreement. This Agreement and the Termination Agreement constitutes the entire agreement among the Parties relating to its subject matter hereof and thereof and supersedes any previous oral or written agreements or arrangements among them or between any of them relating to its subject matter. Effective as of the Agreement Date, each of the Continuing Consortium Members (and Hillhouse, pursuant to the Termination Agreement) agrees and confirms that the Original Consortium Agreement shall be deemed amended, restated, superseded and replaced in its entirety by this Agreement, and accordingly the Original Consortium Agreement is of no further force or effect.

Section 10.3           Further Assurances. Each Party shall use all reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to carry out the intent and purposes of this Agreement.

Section 10.4           Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the maximum extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction.

          

Section 10.5     Amendments; Waivers. Neither this Agreement nor any term hereof may be amended or otherwise modified other than by an instrument in writing signed by each of the Parties. No provision of this Agreement may be waived, discharged or terminated other than by an instrument in writing signed by the Party against whom the enforcement of such waiver, discharge or termination is sought. No failure or delay by any Party in exercising any right, power or privilege under this Agreement 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, power or privilege.

Section 10.6           Assignment; No Third Party Beneficiaries. Other than as provided herein, the rights and obligations of each Party shall not be assigned without the prior consent of the other Parties; provided, however, each of YF Capital, TF Capital and GIC may assign its rights and obligations under this Agreement, in whole or in part, to any of its Affiliates, any of the investment funds managed by or advised by it or any of its Affiliates, or any of the investment vehicles of it, such Affiliate or such investment fund (other than any portfolio companies of it, such Affiliate or such investment fund), but no such assignment shall relieve YF Capital, TF Capital or GIC (as the case may be) from any of its obligations hereunder. This Agreement shall be binding upon the respective heirs, successors, legal representatives and permitted assigns of the Parties. Nothing in this Agreement shall be construed as giving any person, other than the Parties and their heirs, successors, legal representatives and permitted assigns any right, remedy or claim under or in respect of this Agreement or any provision hereof.

Section 10.7           No Partnership or Agency. The Parties are independent and nothing in this Agreement constitutes a Party as the trustee, fiduciary, agent, employee, partner or joint venture of the other Party.

Section 10.8           Counterparts. This Agreement may be executed in counterparts and all counterparts taken together shall constitute one document. The Parties irrevocably and unreservedly agree that this Agreement may be executed by way of electronic signatures and the Parties agree that this Agreement, or any part thereof, shall not be challenged or denied any legal effect, validity and/or enforceability solely on the ground that it is in the form of an electronic record.

Section 10.9           Governing Law and Venue.

(a)                This Agreement shall be interpreted, construed and governed by and in accordance with the Laws of New York without regard to the conflicts of law principles thereof.

(b)                Any Actions arising out of or in any way relating to this Agreement shall be submitted to the International Chamber of Commerce (“ICC”) and resolved in accordance with the rules of the ICC (the “Rules”). The place of arbitration shall be New York City, New York. The official language of the arbitration shall be English and the tribunal shall consist of three (3) arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one (1) Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one (1) Arbitrator; and a third (3rd) Arbitrator will be nominated jointly by the first two (2) Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two (2) Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third (3rd) Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the ICC International Court of Arbitration. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

(c)                Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in Section 10.9(b), any Party may, to the extent permitted under the rules and procedures of the ICC, seek an interim injunction or other form of relief from the ICC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the Laws of New York.

      

 

Section 10.10      Specific Performance. The Parties hereto agree that the obligations imposed on them in this Agreement are special, unique and of an extraordinary character and irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each Party to this Agreement (a) shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the forum described in Section 10.9, without proof of damages or otherwise, this being in addition to any other remedy at law or in equity, and (b) hereby waives any requirement for the posting of any bond or similar collateral in connection therewith. Each Party hereto agrees that such Party will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (i) any other Party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity.

Section 10.11       Limitation on Liability. The obligations of each Party under this Agreement are several (and not joint or joint and several).

Section 10.12       Termination with respect to Hillhouse. Notwithstanding anything to the contrary in this Agreement, each of the Parties agrees that effective as of the Agreement Date, Hillhouse has terminated its participation in the Transaction, is not a member of the Consortium and shall not have any rights or obligations under this Agreement as a Consortium Member, whether accruing prior to or after the Agreement Date, other than as expressly set forth in the Termination Agreement.

Section 10.13       GIC. For avoidance of doubt, notwithstanding any provision of this Agreement to the contrary, this Agreement shall not be binding on, or restrict the activities of, or applicable to, any entity of GIC that primarily engages in investment and trading in the secondary securities market.

Article XI
DEFINITIONS AND INTERPRETATIONS

Section 11.1           Defined Terms. The following terms, as used in this Agreement, shall have the meanings set forth below.

(a)                “Acquisition Proposal” means any proposal or offer relating to any of the following (other than the Transaction): (i) any merger, reorganization, consolidation, share exchange, business combination, scheme of arrangement, amalgamation, recapitalization, liquidation, dissolution, joint venture or other similar transaction involving the Company or any of its subsidiaries whose assets, individually or in the aggregate, constitute 10% or more of the consolidated assets of the Company or to which 10% or more of the total revenue or net income of the Company are attributable, (ii) any sale, lease, license, exchange, transfer or other disposition of assets which would result in a Third Party acquiring assets, individually or in the aggregate, constituting 10% or more of the consolidated assets of the Company and its subsidiaries or to which 10% or more of the total revenue or net income of the Company and its subsidiaries are attributable, (iii) any sale, exchange, transfer or other disposition of 10% or more of any class of equity securities of the Company to any Third Party, (iv) any general offer, tender offer or exchange offer that, if consummated, would result in any Third Party beneficially owning 10% or more of any class of equity securities of the Company, or (v) any public solicitation of proxies in opposition to approval and adoption of a definitive agreement providing for the Transaction and approval of the Transaction by the Company’s stockholders.

(b)                “Action” means any litigation, suit, claim, action, demand letter, or any judicial, criminal, administrative or regulatory proceeding, hearing, investigation, or formal or informal regulatory document production request proceeding.

(c)                “Additional Company Securities” means with respect to a Party, Company Securities with respect to which such Party or his, her or its Affiliates acquires Beneficial Ownership after the Agreement Date.

(d)                “Additional Consortium Member” has the meaning ascribed to it in Section 1.4.

(e)                “Adherence Agreement” has the meaning ascribed to it in Section 1.4.

(f)                 “Advisors” means the advisors and/or consultants of Holdco and/or the Parties (or any Party), in each case appointed in connection with the Transaction.

(g)                “Affiliates” of a specified person means a person who, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified person; provided that, with respect to GIC, “Affiliates” of GIC means a person (i) who, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, GIC and (ii) who is primarily engaged in the business of private equity investment.

(h)                “Agreement” has the meaning ascribed to it in the Preamble.

(i)                 “Agreement Date” has the meaning ascribed to it in the Preamble.

(j)                 “Arbitrator” has the meaning ascribed to it in Section 10.9(b).

(k)                “Beneficial Ownership” by a person of any security includes ownership by any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise (whether or not in writing), has or shares: (i) voting power which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition, of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined in Rule 13d-3 under the Exchange Act; provided that, without duplicative counting of the same securities by the same holder, securities Beneficially Owned by a person will include securities Beneficially Owned by any Affiliates of such person which are Controlled by such person, but no Beneficial Ownership of securities shall be attributed to securities Beneficially Owned by any other person(s) solely by virtue of the fact that such first person may be deemed to constitute a “group” within the meaning of Section 13(d) of the Exchange Act with such other person(s). The terms “Beneficially Own,” “Beneficially Owned” and “Beneficial Owner” shall have correlative meanings.

(l)                 “Board” has the meaning ascribed to it in the Recitals.

(m)              “Business Day” means any day (other than a Saturday, Sunday or public holiday, or any day on which a tropical cyclone warning No. 8 or above or a “black rainstorm warning signal” is hoisted in Hong Kong at any time between 9:00 a.m. and 5:00 p.m.) on which banks are not required or authorized to close in the City of New York, the PRC or Hong Kong.

(n)                “Casdin Capital” means Casdin Partners Master Fund, L.P., an exempted limited partnership established under the Laws of the Cayman Islands with its registered address at Walkers Corporate Limited, Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands.

(o)                “Cash Contribution” has the meaning ascribed to it in Section 1.3(b).

(p)& #xA0;               “Closing” has the meaning ascribed to it in the Recitals.

(q)                “Common Stock” has the meaning ascribed to it in the Recitals.

(r)                 “Company” has the meaning ascribed to it in the Recitals.

(s)                 “Company Options” means each outstanding stock option issued by the Company pursuant to any Stock Incentive Plan that entitles the holder thereof to purchase shares of Common Stock upon the vesting of such award.

(t)                 “Company RSUs” means each outstanding restricted stock unit issued by the Company pursuant to any Stock Incentive Plan that subject to certain restrictions entitles the holder thereof to receive shares of Common Stock upon the vesting of such award.

(u)                “Company Securities” means shares of Common Stock and other securities of the Company (including any shares of Common Stock issuable upon the exercise of any Company Options or the vesting of any Company RSUs, or the conversion, exercise or exchange of any other convertible, exercisable or exchangeable securities into or for any shares of Common Stock or otherwise) issued by the Company.

(v)                “Confidential Information” includes (i) all written, oral or other information obtained in confidence by one Party from any other Party in connection with this Agreement or the Transaction, unless such information (x) is already known to such Party or to others not known by such Party to be bound by a duty of confidentiality, or (y) is or becomes publicly available other than through a breach of this Agreement by such Party, and (ii) the existence or terms of, and any negotiations or discussions relating to, this Agreement, the Proposal and any definitive documentation, including the Definitive Documents.

(w)              “Consortium Member” means each of the Continuing Consortium Members, YF Capital and any Additional Consortium Member, and “Consortium” means all of them collectively.

(x)                “Continuing Consortium Members” has the meaning ascribed to it in the Preamble.

(y)                “Control” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities or the possession of voting power, as trustee or executor, by contract or otherwise.

(z)                “Covered Securities” means all of the Existing Company Securities and any Additional Company Securities.

(aa)             “Definitive Documents” has the meaning ascribed to it in the Recitals.

(bb)            “Discloser” has the meaning ascribed to it in Section 7.2(a).

(cc)             “Equity Contribution” has the meaning ascribed to it in Section 1.3(b).

(dd)            “Equity Contribution Schedule” has the meaning ascribed to it in Section 1.3(c).

(ee)             “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(ff)               “Exclusivity Period” has the meaning ascribed to it in Section 4.1.

(gg)            “Existing Company Securities” means with respect to a Party, Company Securities Beneficially Owned by such Party and his, her or its Affiliate as of the Agreement Date, as set forth opposite the name of such Party in the table under Part II of Schedule A hereto.

(hh)            “GIC” means Velvet Investment Pte. Ltd., a company organized and existing under the Laws of Singapore with its registered address at 168 Robinson Road, #37-01 Capital Tower, Singapore 068912.

(ii)               “Governmental Authority” means any nation or government, any agency, self-regulatory body, public, regulatory or taxing authority, instrumentality, department, commission, court, arbitrator, ministry, tribunal or board of any nation or government or political subdivision thereof, in each case, whether foreign or domestic and whether national, supranational, federal, provincial, state, regional, local or municipal.

(jj)               “Hillhouse” has the meaning ascribed to it in the Preamble.

(kk)            “Holdco” has the meaning ascribed to it in the Recitals.

(ll)               “Holdco Shares” has the meaning ascribed to it in the Recitals.

(mm)        “ICC” has the meaning ascribed to it in Section 10.9(b).

(nn)            “Joint Advisors” has the meaning ascribed to it in Section 2.2(a).

(oo)            “Law” means any statute, law, ordinance, code or any award, writ, injunction, determination, rule, regulation, judgment, decree or executive order or regulations or rules of any applicable stock exchange.

(pp)            “Lead Investors” means Mr. Liu, YF Capital and TF Capital, and “Lead Investor” means any one of them.

(qq)            “Lien” means any security interest, pledge, hypothecation, mortgage, lien (including environmental and tax liens), violation, charge, lease, license, encumbrance, servient easement, adverse claim, reversion, reverter, preferential arrangement, restrictive covenant, condition or restriction of any kind, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership.

(rr)               “Merger Agreement” means a definitive agreement and plan of merger relating to the Transaction as may be entered into by and among Holdco (or the Consortium and/or one or more of its Affiliates), on the one hand, and the Company, on the other hand, in the form to be agreed by such parties and approved by the Board (acting upon the recommendation of the Special Committee).

(ss)              “Merger Sub” has the meaning ascribed to it in the Recitals.

(tt)               “Mr. Dai” means Chengxiang (Chase) Dai, a citizen of the PRC.

(uu)            “Mr. Liu” means Bizuo (Tony) Liu, a citizen of the United States of America.

(vv)            “Mr. Yao” means Yihong Yao, a citizen of the United States of America.

(ww)         “Ms. Zhang” means Li (Helen) Zhang, a citizen of the United States of America.

(xx)            “Original Consortium Agreement” has the meaning ascribed to it in the Recitals.

(yy)    &#x A0;       “Party” and/or “Parties” means the parties to this Agreement, including any Additional Consortium Member.

(zz)             “Permitted Transfer” means a Transfer of Covered Securities by a Party to (i) an Affiliate of such Party which is Controlled by such Party, (ii) a member of such Party’s immediate family or a trust for the benefit of such Party’s or any member of such Party’s immediate family, (iii) any heir, legatees, beneficiaries and/or devisees of such Party or (iv) if such Party is YF Capital, TF Capital or GIC, to any of the Affiliates of such Party, any of the investment funds managed or advised by such Party or any of its Affiliates, or any of the investment vehicles of such Party, such Affiliate or such investment fund; provided that, in each case, such transferee agrees to execute, prior to or concurrently with such Transfer, an Adherence Agreement in the form attached hereto as Schedule B.

(aaa)          “person” means individual, partnership, corporation, association, joint stock company, trust, joint venture, limited liability company, organization, entity or Governmental Authority.

(bbb)        “Per Share Merger Price” has the meaning ascribed to it under Section 1.3(b).

(ccc)          “PRC” means the People’s Republic of China, but solely for the purpose of this Agreement, excluding Hong Kong, the Macau Special Administrative Region of the PRC and the islands of Taiwan.

(ddd)        “Private Party” means each of YF Capital and GIC.

(eee)          “Proposal” has the meaning scribed to it in Section 1.2.

(fff)            “Recipient” has the meaning ascribed to it in Section 7.2(a).

(ggg)        “Relevant Parties” has the meaning ascribed to it in Section 10.1.

(hhh)        “Representatives” means, with respect to any Party, such Party’s officers, directors, employees, accountants, consultants, financial and legal advisors, agents and other representatives. For the avoidance of doubt, with respect to any Party, the Representatives shall not include its financing sources or potential financing sources.

(iii)             “Rollover Shares” has the meaning ascribed in Section 1.3(b).

(jjj)             “Rules” has the meaning ascribed to it in Section 10.9(b).

(kkk)        “Special Committee” has the meaning ascribed to it in the Recitals.

(lll)             “Sponsor Percentage” of a Sponsor means a percentage determined in accordance with Section 1.3(c) and set forth opposite such Sponsor’s name under the column “Sponsor Percentage” of the Equity Contribution Schedule.

(mmm)  “Sponsors” means any Party the word set forth opposite whose name under the column “Sponsor” on the Equity Contribution Schedule is “Yes.”

(nnn)        “Stock Incentive Plans” means, collectively, the 2009 Stock Option Plan, 2011 Incentive Stock Option Plan (as amended), 2013 Stock Incentive Plan, 2014 Stock Incentive Plan and the 2019 Equity Incentive Plan adopted by the Company, and a “Stock Incentive Plan” means any one of the foregoing plans.

(ooo)        “Termination Agreement” has the meaning ascribed to it in the Recitals.

(ppp)        “TF Capital” means TF Capital Ranok Ltd., an exempted company organized and existing under the Laws of the British Virgin Islands.

(qqq)        “Third Party” means any person or “group” (as defined under Section 13(d) of the Exchange Act) of persons, other than any Party or any of his, her or its Affiliates.

(rrr)            “Transaction” has the meaning ascribed to it in the Recitals.

(sss)           “Transfer” means, directly or indirectly, to sell, transfer, offer, exchange, assign, pledge, encumber, hypothecate or otherwise dispose of (by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of Law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other agreement with respect to any sale, transfer, offer, exchange, assignment, pledge, encumbrance, hypothecation or other disposition.

(ttt)             “YF Capital” has the meaning ascribed to it in the Preamble.

Section 11.2           Headings. Section and paragraph headings are inserted for ease of reference only and shall not affect construction.

[Remainder of Page Intentionally Left Blank]

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Yunfeng Fund III, L.P.

By: /s/ Xin Huang                                         

Name: Xin Huang

Title: Authorised Person

Notice details:

Address: Room 3501, 35th floor,

K. Wah Centre, No. 1010,

Middle Huaihai Rd, Shanghai 200031, China

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: (+86) 21 3127 0909

Fax: (+86) 21 -31271750

with a copy to (which shall not constitute notice):

O’Melveny & Myers LLP

31/F AIA Central

1 Connaught Road Central, Hong Kong

Attention: Nima Amini

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Fax: (+852) 2522 1760

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

TF Capital Ranok Ltd.

By: /s/ Tingting Zhang                                    

Name: Tingting Zhang

Title: Director

Notice details:

Address: Unit 705, Tower 1, 88 Keyuan Road, German

Center, Pudong New District, Shanghai 201203, China

Attention: Tingting Zhang

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: (+86) 21 5019 8835

Fax: (+852) 3761 3301

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Velvet Investment Pte. Ltd.

By: /s/ Suresh Balasubramanian              

Name: Suresh Balasubramanian

Title: Director

Notice details:

Address: Unit 1928, China World Tower 1, No.1 Jianguomenwai Avenue, Chaoyang District, Beijing, the People’s Republic of China

Attention: Korwin Chiu

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: (86) 10 6535 1055

Fax: (86) 10 6535 1078

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Casdin Partners Master Fund, L.P.

By:  /s/ Eli Casdin                                      

Name: Eli Casdin

Title: Managing Member

Notice details:

Address: 1350 Avenue of the Americas, Suite 2600,

New York, NY 10019
Attention: Lawrence Canzoneri, Chief Financial Officer
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: 212-554-4952

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Bizuo (Tony) Liu

/s/ Bizuo (Tony) Liu                                         

Notice details:

Address: 1345 Avenue of Americas, 15th Floor,

New York, New York 10105

Email:

Phone: (+1) 347 905 5663

Fax: (+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Li (Helen) Zhang

/s/ Li (Helen) Zhang                                        

Notice details:

Address: 1345 Avenue of Americas, 15th Floor,

New York, New York 10105

Email:

Phone: (+1) 347 905 5663

Fax: (+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Yihong Yao

/s/ Yihong Yao                                                

Notice details:

Address: 1345 Avenue of Americas, 15th Floor,

New York, New York 10105

Email:

Phone: (+1) 347 905 5663

Fax: (+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Chengxiang (Chase) Dai

/s/ Chengxiang (Chase) Dai                              

Notice details:

Address:

1345 Avenue of Americas, 15th Floor, New York, New York 10105

Email:

Phone:

(+1) 347 905 5663

Fax:

(+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Dangdai International Group Co., Limited

By:

/s/ Chen Jie

Name:

Chen Jie

Title:

Executive Vice President Notice details:

Address:

Room 2105-07, Man Yee Building 68 Des Voeux Road Central, Hong Kong

Attention:

Chen Jie

Email:

This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone:

(+852) 3892 2718

Fax:

(+852) 3892 2799

 

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

Mission Right Limited

By:

/s/ Chiu Tao

Name:

Chiu Tao

Title:

Director

Notice details:

Address:

Rooms 4503-05, 45th Floor, China Resources Building, 26 Harbour Road, Wan Chai, Hong Kong

Attention:

Jackie Wah

Email:

This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone:

+852 2856 9300

Fax:

+852 2824 2616

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

 

 

 

Wealth Map Holdings Limited

By:  /s/ James Xiao Dong Liu                                 

Name: James Xiao Dong Liu

Title: Director

 

 

Notice details:

 

Address: Unit 2006-08, 20/F Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong

Attention:

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +86 13501609795

Fax: +852 2630 2011

 

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

 

 

 

Earls Mill Limited

By:  /s/ James Xiao Dong Liu                                   

Name: James Xiao Dong Liu

Title: Director

 

 

Notice details:

 

Address: Unit 2006-08, 20/F Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong

Attention:

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +86 13501609795

Fax: +852 2630 2011

 

 

 

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

 

 

 

Viktor Pan

 

/s/ Viktor Pan                                                   

Notice details:

Address: Mingyue Road 1118, No. 30

Shanghai 201206, China

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +86 15000500071

 

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

 

 

 

Zheng ZHOU

 

/s/ Zheng ZHOU                                             

Notice details:

Address: Flat B, 25/F, Tower 6, Marinella, 9 Welfare Road, Aberdeen, Hong Kong

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +852 92283505

 

 

IN WITNESS WHEREOF, the undersigned have caused this Consortium Agreement to be executed as of the date first written above.

 

 

 

OPEA SRL

By:  /s/ Edoardo Fontana                                           

Name: Edoardo Fontana

Title: Managing Director

 

 

Notice details:

 

Address: OPEA SRL

Via Cesare Battisti 1

20122 Milan
Attention: Edoardo Fontana
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +39 3453306940

Fax: +39 02 76394692

 

 

Schedule A

Part I: Continuing Consortium Members

 

Velvet Investment Pte. Ltd.

Casdin Partners Master Fund, L.P.

TF Capital Ranok Ltd.

Bizuo (Tony) Liu

Li (Helen) Zhang

Yihong Yao

Chengxiang (Chase) Dai

Dangdai International Group Co., Limited

Mission Right Limited

Wealth Map Holdings Limited

Earls Mill Limited

Viktor Pan

Zheng Zhou

OPEA SRL

 

 

 

Part II: Beneficial Ownership of Company Securities

Parties	Shares of Common Stock	Other Company Securities (including Company Options and Company RSUs)
Bizuo (Tony) Liu	225,017	Company Options: 616,100 Company RSUs: 22,500
Li (Helen) Zhang	21,629	Company Options: 91,700 Company RSUs: 6,569
Yihong Yao	48,477	Company Options: 61,500 Company RSUs: 4,972
Chengxiang (Chase) Dai	17,614	Company Options: 41,700 Company RSUs: 4,972
Dangdai International Group Co., Limited	2,270,000	--
Mission Right Limited	1,036,040	--
Viktor Pan	1,000,000	--
Zheng Zhou	371,007	--
Wealth Map Holdings Limited	1,404,494	--
Earls Mill Limited	308,426	--
OPEA SRL	21,052	--
Yunfeng Fund III, L.P.	--	--
TF Capital Ranok Ltd.	358,974(1)	--
Velvet Investment Pte. Ltd.	--	--
Casdin Partners Master Fund, L.P.	--	--
Total	7,082,730	Company Options: 811,000 Company RSUs: 39,013

__________________

Note:

(1)

358,974 shares of Common Stock are issuable upon the conversion of a convertible note pursuant to the Bridge Loan Agreement, dated January 28, 2020, by and between the Company and Winsor Capital Limited, an affiliate of TF Capital Ranok Ltd.

 

 

Schedule B

Form of Adherence Agreement

This Adherence Agreement (this “Agreement”) is entered into on [●] by [Additional Consortium Member], a [limited liability company] organized and existing under the Laws of [●] with its registered address at [●] (the “Additional Consortium Member”).

RECITALS:

(A)              On June [●] 2020, the parties listed on Annex A to this Agreement (the “Existing Parties”) entered into an amended and restated consortium agreement (the “Consortium Agreement”) and proposed to, among other things, undertake the Transaction (as defined in the Consortium Agreement).

(B)              Additional Consortium Members may be admitted to the Consortium pursuant to Section 1.4 of the Consortium Agreement.

(C)              The Additional Consortium Member now wishes to participate in the Transaction contemplated under the Consortium Agreement, to sign this Agreement, and to be bound by the terms of the Consortium Agreement as a Consortium Member and a Party thereto.

THIS AGREEMENT WITNESSES as follows:

1.                   Defined Terms And Construction

(a)

Capitalized terms used but not defined herein shall have the meaning set forth in the Consortium Agreement.

 

(b)

This Agreement shall be incorporated into the Consortium Agreement as if expressly incorporated into the Consortium Agreement.

2.                   Undertakings

(a)

Assumption of obligations

The Additional Consortium Member undertakes to each other Party to the Consortium Agreement that it will, with effect from the date hereof, perform and comply with each of the obligations of a Consortium Member and a Party as if it had been a Consortium Member and a Party to the Consortium Agreement at the date of execution thereof and where there is a reference to a “Consortium Member” or a “Party” it shall be deemed to include a reference to the Additional Consortium Member and with effect from the date hereof, all the rights of a Consortium Member and a Party provided under the Consortium Agreement will be accorded to the Additional Consortium Member as if the Additional Consortium Member had been a Consortium Member and a Party under the Consortium Agreement at the date of execution thereof. The number of Rollover Shares of the Additional Consortium Member and/or the amount of Cash Contribution proposed to be made by the Additional Consortium Member, whether the Additional Consortium Member would be a “Sponsor” under the Consortium Agreement and, if yes, the Sponsor Percentage of the Additional Consortium Member are set forth in Schedule A hereto.

 

3.                   Representations And Warranties

(a)

The Additional Consortium Member represents and warrants to each of the other Parties as follows:

(1)                Status

It is a company duly organized, established and validly existing under the Laws of the jurisdiction stated in the preamble of this Agreement and has all requisite power and authority to own, lease and operate its assets and to conduct the business which it conducts.

(2)                Due Authorization

It has full power and authority to execute and deliver this Agreement and the execution, delivery and performance of this Agreement by the Additional Consortium Member has been duly authorized by all necessary action on behalf of the Additional Consortium Member.

(3)                Legal, Valid and Binding Obligation

This Agreement has been duly executed and delivered by the Additional Consortium Member and constitutes the legal, valid and binding obligation of the Additional Consortium Member, enforceable against it in accordance with the terms hereof (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other Laws affecting creditors’ rights generally and general principles of equity).

(4)                Ownership

As of the date of this Agreement, (i) the Additional Consortium Member is the sole Beneficial Owner of and has good and valid title to the Company Securities set forth opposite its name in Schedule B hereto, free and clear of any Liens, other than any Liens pursuant to this Agreement, or arising under the certificate of incorporation and bylaws of the Company and transfer restrictions imposed by generally applicable securities Laws. As of the date of this Agreement, subject to the last sentence of this Section 3(a)(4), the Additional Consortium Member’s Company Securities listed in Schedule B hereto constitute all of the shares of Common Stock, Company Options and Company RSUs (and any other securities convertible, exercisable or exchangeable into or for any shares of Common Stock) Beneficially Owned or owned of record by it. Except as otherwise indicated on Schedule B hereto, the Additional Consortium Member is and will be the sole record holder and Beneficial Owner of the Covered Securities and has (i) the sole voting power, (ii) the sole power of disposition and (iii) the sole power to agree to all of the matters set forth in this Agreement and the Consortium Agreement with respect to the Covered Securities. The Additional Consortium Member has not taken any action described in Section 4.7 of the Consortium Agreement.

(5)                Reliance

The Additional Consortium Member acknowledges that the Existing Parties have consented to the admission of the Additional Consortium Member to the Consortium on the basis of and in reliance upon (among other things) the representations and warranties in Sections 3(a)(1) to 3(a)(4) above, and the Existing Parties’ consent was induced by such representations and warranties.

4.                   Miscellaneous

Article VIII (Notices) and Section 10.9 (Governing Law and Venue) of the Consortium Agreement shall apply mutatis mutandis to this Agreement.

[Signature page follows.]

IN WITNESS WHEREOF, the Additional Consortium Member has executed this Agreement and delivered this Agreement as of the day and year first above written.

[ADDITIONAL CONSORTIUM MEMBER]

By: ___________________________________

Name: [●]

Title: [●]

Notice details:

Address: [●]

Attention: [●]

Email: [●]

Phone: [●]

Fax: [●]

Annex A (Adherence Agreement)

Existing Parties

Yunfeng Fund III, L.P.

Velvet Investment Pte. Ltd.

Casdin Partners Master Fund, L.P.

TF Capital Ranok Ltd.

Bizuo (Tony) Liu

Li (Helen) Zhang

Yihong Yao

Chengxiang (Chase) Dai

Dangdai International Group Co., Limited

Mission Right Limited

Wealth Map Holdings Limited

Earls Mill Limited

Viktor Pan

Zheng Zhou

OPEA SRL

 

Exhibit 10

 

Termination Agreement

 

TERMINATION AGREEMENT

This TERMINATION AGREEMENT (this “Agreement”, including all schedules annexed hereto, as hereafter from time to time amended, modified, supplemented, renewed or replaced) is made and entered into as of June 24, 2020 (the “Agreement Date”), by and among:

A.

Hillhouse Bio Holdings, L.P., an exempted limited partnership organized and existing under the Laws of the Cayman Islands (the “Hillhouse”); and

B.

the parties set forth on Schedule A hereto (the “Continuing Consortium Members”).

Hillhouse and the Continuing Consortium Members are referred to herein each as a “Party,” and collectively, the “Parties.” Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to them in the Original Consortium Agreement.

RECITALS

WHEREAS, the Continuing Consortium Members and Hillhouse have previously entered into a Consortium Agreement dated November 9, 2019, as amended on March 30, 2020 (the “Original Consortium Agreement”) pursuant to which the Continuing Consortium Members and Hillhouse agreed to form a consortium (“Original Consortium”), subject to and upon the terms of the Original Consortium Agreement, for the purpose of pursuing an acquisition transaction with respect to Cellular Biomedicine Group, Inc., a Delaware corporation (the “Company”), pursuant to which the parties to the Original Consortium Agreement or their Affiliates intended to acquire all of the outstanding shares of common stock, par value $0.001 per share, of the Company not already owned by them (the “Transaction”); and

WHEREAS, Hillhouse desires to terminate its involvement and participation in the Transaction and withdraw from the Original Consortium, and the Continuing Consortium Members desire to terminate the Original Consortium Agreement solely with respect to Hillhouse and enter into an Amended and Restated Consortium Agreement among the Continuing Consortium Members (and such additional parties as they may decide) (such agreement, as the “A&R Consortium Agreement”) to amend and restate the Original Consortium Agreement in its entirety, in each case effective as of the Agreement Date.

WHEREAS, in connection with the execution of this Agreement and the A&R Consortium Agreement, Hillhouse may be required to file with the U.S. Securities and Exchange Commission an amendment to its ownership report on Schedule 13D to disclose its entry into this Agreement and certain additional information.

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

 

AGREEMENT

1.      Termination of Original Consortium Agreement as it Relates to Hillhouse.

(a)               Each of the Parties agrees and confirms that the Original Consortium Agreement (including any amendments, modifications or agreements with respect thereto other than this Agreement) is hereby irrevocably terminated solely with respect to Hillhouse and, solely as it relates to Hillhouse, is of no further force or effect, including any provision of the Original Consortium Agreement that by its terms would otherwise have survived the termination or expiration of the Original Consortium Agreement as it relates to Hillhouse.

(b)               Each of the Parties agrees and confirms that, (i) from and after the date hereof, Hillhouse shall have no further rights, obligations or liabilities under the Original Consortium Agreement (including any amendments, modifications or agreements with respect thereto other than this Agreement), and (ii) except for the termination solely with respect to Hillhouse, the Original Consortium Agreement shall continue in full force and effect in accordance with the provisions thereof on the date hereof, as may be from time to time amended, modified, supplemented, renewed or replaced by the parties thereto other than Hillhouse.

(c)               Hillhouse acknowledges that, as promptly as practicable following the execution and delivery of this Agreement, the Continuing Consortium Members intend to enter into the A&R Consortium Agreement in order to constitute a consortium thereunder for the purposes of pursuing the Transaction without the involvement of Hillhouse or its Affiliates, and Hillhouse agrees and undertakes for itself and on behalf of its Affiliates not to contest the effectiveness of the A&R Consortium Agreement as applied to the Continuing Consortium Members.

2.                  Allocation of Costs; Provision of Information.

(a)               The Parties hereby acknowledge and agree that, notwithstanding anything in the Original Consortium Agreement to the contrary, Hillhouse shall bear all fees, costs and expenses (i) incurred by any separate Advisors who were retained by it or its Affiliates in connection with the Transaction under the Original Consortium Agreement which have not been agreed to be treated as the transaction expenses of the Original Consortium pursuant to Section 2.2(b) of the Original Consortium Agreement, and (ii) subject to Section 2(b), of the Advisors set forth on Schedule B (the “Specified Advisors”) as accrued or incurred prior to the Agreement Date in connection with the Transaction under the Original Consortium Agreement, in each case, whether or not previously paid (the fees, costs and expenses contemplated by this Section 2(a) (the “Hillhouse Fees”).

(b)               Notwithstanding Section 2(a), the Parties agree that, in the event that the Transaction is consummated by any of the Continuing Consortium Members or the consortium as constituted under the A&R Consortium Agreement, promptly (and no later than three Business Days) following the consummation of the Transaction, the Continuing Consortium Members shall reimburse, or cause the Company to reimburse, Hillhouse in an amount as set forth on Schedule B in respect of the Hillhouse Fees, and in consideration thereof, Hillhouse agrees to instruct the Specified Advisors to provide, promptly following the Agreement Date, up-to-date copies (in electronic form) of all contracts and agreements (including up-to-date copies of drafts of all Definitive Documents, as defined under the Original Consortium

Agreement), due diligence reports and legal analyses and memos held by them relating to or prepared in connection with the Transaction and the Original Consortium.

(c)               The Parties hereby acknowledge and agree that, except for the Hillhouse Fees, in no event shall Hillhouse bear, or have any obligation to pay, any fees, costs and expenses (i) incurred by any of the Continuing Consortium Members (or their respective Affiliates) in connection with their participation in the Transaction under the Original Consortium Agreement, the A&R Consortium Agreement or otherwise, or (ii) by virtue of the consortium as constituted under the A&R Consortium Agreement.

(d)               Notwithstanding anything to the contrary in this Agreement, but subject to the immediately following sentence, Hillhouse agrees to promptly provide to the Lead Investors (other than Hillhouse) the legally required information about Hillhouse and its involvement in the Transaction prior to the Agreement Date as the Lead Investors (other than Hillhouse) reasonably request in good faith that, upon the advice of outside legal counsel, is required to be included in (i) any proxy statement to be circulated to stockholders of the Company in connection with the Transaction (the “Proxy Statement”), or (ii) a Transaction Statement on Schedule 13E-3 in relation to the Transaction (the “Schedule 13e-3”).  Hillhouse agrees to permit the Company to publish and disclose in the Proxy Statement and Schedule 13e-3 (including all documents filed with the SEC in accordance therewith), the relevant facts and circumstances of its and its Affiliates’ involvement in evaluating and negotiating a potential transaction with the Company prior to the Agreement Date to the extent required by applicable Law (as reasonably determined in good faith upon the advice of outside legal counsel to the Lead Investors (other than Hillhouse) or the SEC; provided, however, that the Continuing Consortium Members shall not, and shall cause the Company not to, include in the Proxy Statement, the Schedule 13e-3, or any amendment or supplement thereto, any information regarding Hillhouse or any of its Affiliates (“Hillhouse Related Disclosures”) without providing Hillhouse a reasonable opportunity in advance to review and comment on the Hillhouse Related Disclosures (which comments shall be reasonably considered), and will not include any Hillhouse Related Disclosures in the Proxy Statement, the Schedule 13e-3 or amendment or supplement thereto filed with the SEC or mailed to any stockholders of the Company without first obtaining Hillhouse’s consent (which shall not be unreasonably withheld, conditioned or delayed). All reasonable out-of-pocket costs and expenses incurred by Hillhouse or its Affiliates in complying with its obligations under this Section 2(d) following the Agreement Date (including outside attorneys’ fees) shall be borne exclusively by the consortium as constituted under the A&R Consortium Agreement pursuant to the terms thereof.

3.                  Releases; Covenant Not to Sue; Non-Disparagement.

(a)               Each Continuing Consortium Member, on such Continuing Consortium Member’s own behalf and, on behalf of its Affiliates and its and their respective successors, assigns, directors, officers, employees, partners, shareholders, members, and any other person (as defined in the Original Consortium Agreement; “Person”) claiming by, through or under any of the foregoing, does hereby unconditionally and irrevocably release, waive and forever discharge, each of Hillhouse, and each of its Affiliates and its and their respective past and present directors, officers, managers, employees, agents, predecessors, successors, assigns, shareholders, members and partners (the “Released Exiting Parties”), and Hillhouse, on Hillhouse’s own behalf and, on behalf of its Affiliates and its and their respective successors, assigns, directors, officers, employees, partners, shareholders, members, and any other Person claiming by, through or under any of the foregoing, does hereby unconditionally and

irrevocably release, waive and forever discharge, each Continuing Consortium Member, and each of its Affiliates and its and their respective past and present directors, officers, managers, employees, agents, predecessors, successors, assigns, shareholders, members and partners (the “Released Continuing Parties”), in each case, from any and all claims, demands, damages, judgments, causes of action and liabilities of any nature whatsoever, whether or not known, suspected or claimed, which the releasing Person now has, ever had, or ever claims to have had, arising directly or indirectly out of or related to events, facts, conditions or circumstances existing or arising on or prior to the Agreement Date with respect to the Original Consortium Agreement or the Transaction (all of the foregoing, collectively, the “Released Claims”).

(b)               Notwithstanding anything in Section 3(a) to the contrary, the “Released Claims” expressly exclude, and the provisions of Section 3(a) shall in no event release, waive or otherwise diminish, the obligations, liabilities and rights of any Party under this Agreement or under any other contract entered into on or after the date of this Agreement to which a Released Exiting Party or a Released Continuing Party, as applicable, is a party (whether in connection with the Transaction or otherwise).

(c)               Each of the Continuing Consortium Members on behalf of itself and its Released Continuing Parties, agrees not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any Released Exiting Party, any Action with any court, arbitration tribunal, or other Governmental Authority, relating to any Released Claims or otherwise arising from or related to the Transaction or any successor transaction involving the Company (other than a valid claim arising from breach of this Agreement) unless compelled by applicable Law or Governmental Authority of competent jurisdiction over a Party, and Hillhouse on behalf of itself and its Released Exiting Parties, agrees not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any Released Continuing Party, any Action with any court, arbitration tribunal, or other Governmental Authority, relating to any Released Claims unless compelled by applicable Law or Governmental Authority of competent jurisdiction over a Party.

(d)               During the period commencing on the Agreement Date on the date that is two (2) years after the Agreement Date, (i) Hillhouse shall not, and shall cause its Affiliates not to, make any public statement that disparages, or would be reasonably likely to harm the reputation of, the Company or any of its subsidiaries or any Released Continuing Party, and (ii) each Continuing Consortium Member shall not, and shall cause its Affiliates not to, make any public statement that disparages, or would be reasonably likely to harm the reputation of, any Released Exiting Party; provided, however, that any statement of fact otherwise prohibited by this Section 3(d) may nevertheless be made without violating this Section 3(d) if such statement is required by applicable Law (including any such statement made in response to any inquiry under oath or in response to any inquiry by a Governmental Authority) as reasonable determined by such Person based on the advice of outside counsel and, to the extent practicable, upon reasonable prior notice to the Parties of the nature of the statement and the basis pursuant to which it is required to be made.

4.                  Confidentiality.

(a)               Except as permitted under Section 5 or this Section 4(a), each Continuing Consortium Member shall not, and shall direct his, her or its Affiliates and the Representatives of the foregoing not to, without the prior written consent of Hillhouse, disclose, reproduce, distribute or supply any Confidential Information received by such Continuing Consortium

Member from Hillhouse or its Representatives to any other Person, and Hillhouse shall not, and shall direct its Affiliates and the Representatives not to, without the prior written consent of the applicable Continuing Consortium Member, disclose, reproduce, distribute or supply any Confidential Information received by Hillhouse from such Continuing Consortium Member or its Representatives to any other Person. To the extent a Continuing Consortium Member receives Confidential Information from Hillhouse or is in possession of Confidential Information regarding Hillhouse or its Affiliates, or to the extent that Hillhouse receives Confidential Information from a Continuing Consortium Member or is in possession of Confidential Information regarding a Continuing Consortium Member or Continuing Consortium Members or their Affiliates (in each case, such recipient or holder, a “Recipient” and, the Party whose Confidential Information is disclosed or held by the Recipient, the “Discloser”), the Discloser may disclose any Confidential Information to any of his, her or its Affiliates or any of the Representatives of the foregoing who are concerned with the Transaction and whose knowledge of such information is reasonably necessary or desirable for such purpose and who (prior to such disclosure) agree in writing to be bound by similar confidentiality obligations as set out herein or are otherwise bound by applicable law or rules of professional conduct to keep such information confidential. Each Party shall not and shall direct his, her or its Affiliates and the Representatives of the foregoing to whom Confidential Information is disclosed pursuant to the preceding sentence not to, use any Confidential Information for any purpose other than exclusively for the purposes of this Agreement or the Transaction. Upon discovery of any unauthorized use or disclosure of Confidential Information or any breach of this Section 4 by the Recipient or any of his, her or its Affiliates or any of the Representatives of the foregoing, such Recipient shall give a written notice to the other Parties promptly, and shall cooperate with the other Parties to assist the Discloser to regain possession of such disclosed Confidential Information and prevent its further unauthorized use or disclosure, or remedy such breach, in each case to the extent reasonably practicable.

(b)               Subject to Section 4(c), the Recipient shall safeguard and return to the Discloser, on demand, any Confidential Information which falls within clause (a) of the definition of Confidential Information, and in the case of electronic data that constitutes Confidential Information, to return or destroy such Confidential Information at the option of the Recipient.

(c)               Each Recipient may retain in a secure archive a copy of the Confidential Information referred to in Section 4(b) if the Confidential Information is required to be retained by it for regulatory purposes or in connection with a bona fide document retention policy.

(d)               Each Party acknowledges that the obligations contained in this Section 4 shall continue to apply for a period of twelve (12) months following the Agreement Date, unless otherwise agreed in writing.

(e)               For purposes of this Agreement, “Confidential Information” means (i) all written, oral or other information obtained in confidence by one Party from any other Party in connection with this Agreement, the Original Consortium Agreement or the Transaction, unless such information (x) is already known to such Party or to others not known by such Party to be bound by a duty of confidentiality, or (y) is or becomes publicly available other than through a breach of this Agreement by such Party, and (ii) the existence or terms of, and any negotiations or discussions relating to, t his Agreement, the Original Consortium Agreement, the Proposal and any definitive documentation, including the Definitive Documents.

5.                  Permitted Disclosures. A Party may make disclosures (a) to those of his, her or its Affiliates and the Representatives of the foregoing as such Party reasonably deems necessary to give effect to or enforce this Agreement (including, with respect to each of the Lead Investors (other than Hillhouse), potential sources of capital in connection with the Transaction), but only on a confidential basis; (b) if required by applicable Law or the rules and regulations of any securities exchange or Governmental Authority of competent jurisdiction over a Party, but only after the form and terms of such disclosure have been notified to the other Parties and the other Parties have had a reasonable opportunity to comment thereon, in each case to the extent reasonably practicable; or (c) if the information is publicly available other than through a breach of this Agreement by such Party, any of his, her or its Affiliates or any of the Representatives of the foregoing.

6.                  Publicity. Notwithstanding anything to the contrary in Section 4 or Section 5, without the prior written consent of Hillhouse, none of the other Parties or any of his, her or its Affiliates or the Representatives of the foregoing shall use, publish or reproduce the name of Hillhouse, its Affiliates and/or controlling persons or any similar name, trademark or logo in any of their non-internal discussion, documents or materials, including without limitation announcements, press release, marketing, advertising or promotion materials or otherwise for any marketing, advertising, promotional or other purposes. With respect to such non-internal discussion, documents or materials regarding the subject matter of this Agreement, before issuance or disclosure of such non-internal discussion, documents or materials, Hillhouse shall be granted reasonable opportunity to review and comment on any disclosure relating to Hillhouse or its Affiliates. Without the prior written consent of Hillhouse, no such non-internal discussion, documents or materials shall be issued or disclosed by any other Party if containing any information of Hillhouse or its Affiliates.

7.                  Representations and Warranties of the Parties.

(a)               Each Party hereby represents and warrants, on behalf of such Party only, to the other Parties that (a) such Party has the requisite power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by such Party have been duly authorized by all necessary action on the part of such Party and no additional proceedings are necessary to approve this Agreement; (c) this Agreement has been duly executed and delivered by such Party and constitutes a valid and binding agreement of such Party enforceable against such Party in accordance with the terms hereof; and (d) the execution, delivery and performance (including the provision and exchange of information) of this Agreement by such Party will not (i) conflict with, require a consent, waiver or approval under, or result in a breach of or default under, any of the terms of any material contract or agreement to which such Party is a party or by which such Party is bound, or any office such Party holds, (ii) violate any Law applicable to such Party or any of his, her or its properties and assets, or (iii) result in the creation of, or impose any obligation on such Party to create, any Lien of any nature whatsoever upon such Party’s properties or assets.

(b)               Hillhouse hereby represents and warrants to the Continuing Consortium Members that, other than the Specified Advisors (the fees, commissions and expenses of which will be paid by in accordance with Section 2(a) and 2(b)) or as otherwise set forth on Schedule B, it and its Affiliates have not engaged or made arrangements with any Advisor that would entitle such Advisor to any legal, advisory, brokerage, finder’s or other fee or commission from the Company (or its Subsidiaries) or any Continuing Consortium Members (or would be treated as the transaction expenses of the Original Consortium pursuant to Section 2.2(b) of the Original Consortium Agreement) in connection with the Transaction.

8.                  Amendments; Waivers. Neither this Agreement nor any term hereof may be amended or otherwise modified other than by an instrument in writing signed by each of the Parties. No provision of this Agreement may be waived, discharged or terminated other than by an instrument in writing signed by the Party against whom the enforcement of such waiver, discharge or termination is sought. No failure or delay by any Party in exercising any right, power or privilege under this Agreement 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, power or privilege.

9.                  Entire Agreement. This Agreement sets forth the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes any previous oral or written agreements or arrangements among them or between any of them relating to its subject matter.

10.              Further Assurances. Each Party shall use all reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to carry out the intent and purposes of this Agreement.

11.              Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the maximum extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction.

12.              Assignment. No Third Party Beneficiaries. The rights and obligations of each Party shall not be assigned without the prior consent of the other Parties. This Agreement shall be binding upon the respective heirs, successors, legal representatives and permitted assigns of the Parties. Nothing in this Agreement shall be construed as giving any Person, other than the Parties and their heirs, successors, legal representatives and permitted assigns any right, remedy or claim under or in respect of this Agreement or any provision hereof.

13.              No Partnership or Agency. The Parties are independent and nothing in this Agreement constitutes a Party as the trustee, fiduciary, agent, employee, partner or joint venture of the other Party.

14.              Counterparts. This Agreement may be executed in counterparts and all counterparts taken together shall constitute one document. The Parties irrevocably and unreservedly agree that this Agreement may be executed by way of electronic signatures and the Parties agree that this Agreement, or any part thereof, shall not be challenged or denied any legal effect, validity and/or enforceability solely on the ground that it is in the form of an electronic record.

15.              Governing Law and Venue.

(a)               This Agreement shall be interpreted, construed and governed by and in accordance with the Laws of New York without regard to the conflicts of law principles thereof.

(b)               Any Actions arising out of or in any way relating to this Agreement shall be submitted to the International Chamber of Commerce (“ICC”) and resolved in accordance with the rules of the ICC (the “Rules”). The place of arbitration shall be New York City, New York. The official language of the arbitration shall be English and the tribunal shall consist of three (3) arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall

nominate jointly one (1) Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one (1) Arbitrator; and a third (3rd) Arbitrator will be nominated jointly by the first two (2) Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two (2) Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third (3rd) Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the ICC International Court of Arbitration. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

(c)               Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in Section 15(b), any Party may, to the extent permitted under the rules and procedures of the ICC, seek an interim injunction or other form of relief from the ICC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the Laws of New York.

16.              Limitation on Liability. The obligations of each Party under this Agreement are several (and not joint or joint and several).

17.              Notices. Any notice, request, instruction or other document to be provided hereunder by any Party to another Party shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, or by facsimile, overnight courier or electronic mail, to the address provided under such other Party’s signature page to the Original Consortium Agreement, or to such other address or facsimile number or electronic mail address as such Party may hereafter specify for the purpose by notice to the other Parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a Business Day in the place of receip t. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt.

[Signatures to Follow on the Next Page]

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

Hillhouse Bio Holdings, L.P.

By: Hillhouse Bio Holdings GP, Ltd., its general partner

 

By: /s/ Colm John O'Connell________________

Name: Colm John O'Connell

Title: Director

 

 

Notice details:

Address: Suite 2202, 22nd Floor, Two International
Finance Centre, 8 Finance Street, Central, Hong Kong

Attention: Qingqing Yi

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: (+852) 2179 1988

Fax: (+852) 2179 1900

with a copy to: Adam Hornung

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

TF Capital Ranok Ltd.

By: /s/ Tingting Zhang______________________

Name: Tingting Zhang

Title: Director

Notice details:

Address: Unit 705, Tower 1, 88 Keyuan Road, German

Center, Pudong New District, Shanghai 201203, China

Attention: Tingting Zhang

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: (+86) 21 5019 8835

Fax: (+852) 3761 3301

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

Velvet Investment Pte. Ltd.

By: /s/ Suresh Balasubramanian                             

Name: Suresh Balasubramanian

Title: Director

Notice details:

Address: Unit 1928, China World Tower 1, No.1 Jianguomenwai Avenue, Chaoyang District, Beijing, the People’s Republic of China

Attention: Korwin Chiu

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: (86) 10 6535 1055

Fax: (86) 10 6535 1078

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

Casdin Partners Master Fund, L.P.

By: /s/ Eli Casdin                                                   

Name: Eli Casdin

Title: Managing Member

Notice details:

Address: 1350 Avenue of the Americas, Suite 2600, New York, NY 10019
Attention: Lawrence Canzoneri, Chief Financial Officer
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: 212-554-4952

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

Bizuo (Tony) Liu

/s/  Bizuo (Tony) Liu                                       

Notice details:

Address: 1345 Avenue of Americas, 15th Floor, New York, New York 10105

Email:

Phone: (+1) 347 905 5663

Fax: (+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

Li (Helen) Zhang

/s/ Li (Helen) Zhang                                        

Notice details:

Address: 1345 Avenue of Americas, 15th Floor, New York, New York 10105

Email:

Phone: (+1) 347 905 5663

Fax: (+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

Yihong Yao

/s/ Yihong Yao                                               

 

Notice details:

Address: 1345 Avenue of Americas, 15th Floor, New York, New York 10105

Email:

Phone: (+1) 347 905 5663

Fax: (+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

Chengxiang (Chase) Dai

/s/ Chengxiang (Chase) Dai                             

 

Notice details:

Address:

1345 Avenue of Americas, 15th Floor, New York, New York 10105

Email:

Phone:

(+1) 347 905 5663

Fax:

(+1) 347 679 8203

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

Dangdai International Group Co., Limited

By:

/s/ Chen Jie

Name:

Chen Jie

Title:

Executive Vice President Notice details:

Address:

Room 2105-07, Man Yee Building 68 Des Voeux Road Central, Hong Kong

Attention:

Chen Jie

Email:

This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone:

(+852) 3892 2718

Fax:

(+852) 3892 2799

 

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

Mission Right Limited

By:

/s/ Chiu Tao

Name:

Chiu Tao

Title:

Director

Notice details:

Address:

Rooms 4503-05, 45th Floor, China Resources Building, 26 Harbour Road, Wan Chai, Hong Kong

Attention:

Jackie Wah

Email:

This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone:

+852 2856 9300

Fax:

+852 2824 2616

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

 

 

Wealth Map Holdings Limited

By: /s/ James Xiao Dong Liu                              

Name: James Xiao Dong Liu

Title: Director

 

 

Notice details:

 

Address: Unit 2006-08, 20/F Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong

Attention:

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +86 13501609795

Fax: +852 2630 2011

 

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

 

 

Earls Mill Limited

By: /s/ James Xiao Dong Liu                              

Name: James Xiao Dong Liu

Title: Director

 

 

Notice details:

 

Address: Unit 2006-08, 20/F Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong

Attention:

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +86 13501609795

Fax: +852 2630 2011

 

 

 

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

 

 

Viktor Pan

 

/s/ Viktor Pan                                                  

Notice details:

Address: Mingyue Road 1118, No. 30

Shanghai 201206, China

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +86 15000500071

 

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

 

 

Zheng ZHOU

 

/s/ Zheng ZHOU                                              

Notice details:

Address: Flat B, 25/F, Tower 6, Marinella, 9 Welfare Road, Aberdeen, Hong Kong

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +852 92283505

 

 

IN WITNESS WHEREOF, the undersigned have caused this Termination Agreement to be executed as of the date first written above.

 

 

 

OPEA SRL

By:  /s/ Edoardo Fontana                                   

Name: Edoardo Fontana

Title: Managing Director

 

 

Notice details:

 

Address: OPEA SRL

Via Cesare Battisti 1

20122 Milan
Attention: Edoardo Fontana
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Phone: +39 3453306940

Fax: +39 02 76394692

 

Schedule A

Continuing Consortium Members

 

Velvet Investment Pte. Ltd.

Casdin Partners Master Fund, L.P.

TF Capital Ranok Ltd.

Bizuo (Tony) Liu

Li (Helen) Zhang

Yihong Yao

Chengxiang (Chase) Dai

Dangdai International Group Co., Limited

Mission Right Limited

Wealth Map Holdings Limited

Earls Mill Limited

Viktor Pan

Zheng Zhou

OPEA SRL

 

 

Exhibit 11

 

Joint Filing Agreement

 

PURSUANT TO RULE 13d-1(k)

 

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D may be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him, her or it contained herein and therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he, she or it knows that such information is inaccurate.

 

Dated: June 24, 2020 

 

	/s/ Bizuo (Tony) Liu
	BIZUO (TONY) LIU
	/s/ Li (Helen) Zhang
	LI (HELEN) ZHANG
	/s/ Yihong Yao
	YIHONG YAO
	/s/ Chengxiang (Chase) Dai
	CHENGXIANG (CHASE) DAI
	MISSION RIGHT LIMITED
	By: /s/ Chiu Tao
	Name:	Chiu Tao
	Title:	Director
	/s/ Viktor Pan
	VIKTOR PAN
	OPEA SRL
	By: /s/ Edoardo Fontana
	Name:	Edoardo Fontana
	Title:	Managing Director

 

	By: /s/ Zheng Zhou
	ZHENG ZHOU

	SAILING CAPITAL OVERSEAS INVESTMENTS FUND, L.P.
	/s/ James Xiao Dong Liu
	Name:	James Xiao Dong Liu
	Title:	Chairman
	WINSOR CAPITAL LIMITED
	By: /s/ Ming Li
	Name:	Ming Li
	Title:	Secretary
	TF VENTURE CAPITAL MANAGEMENT CO., LTD.
	By: /s/ Chiang Chen Hsiu-Lien
	Name:	Chiang Chen Hsiu-Lien
	Title:	Director
	/s/ Chiang Chen Hsiu-Lien
	CHIANG CHEN HSIU-LIEN