EX-10.10

EX-10.10 16 d806768dex1010.htm EX-10.10 EX-10.10

Exhibit 10.10

SERIES C PREFERRED SHARE PURCHASE AGREEMENT

This SERIES C PREFERRED SHARE PURCHASE AGREEMENT (the “Agreement”) is made and entered into onJanuary 31, 2019 by and among:

1.	Burning Rock Biotech Limited, an exempted company duly incorporated and valid existing under the Laws of the Cayman Islands (the “Company”);

2.	BR Hong Kong Limited, a limited liability company incorporated under the Laws of Hong Kong (the “HK Company”);

3.	Burning Rock China (北京博宁洛克生物科技有限公司), a wholly foreign owned enterprise duly incorporated and validly existing under the Laws of the PRC (the “WFOE”);

4.	Burning Rock Biotechnology (Shanghai) Co., Ltd. (燃石生物科技（上海）有限公司), a company duly incorporated and validly existing under the Laws of the PRC (the “Shanghai Subsidiary”);

5.	Burning Rock (Beijing) Biotechnology Co., Ltd. (燃石（北京）生物科技有限公司), a company duly incorporated and validly existing under the Laws of the PRC (the “Beijing Subsidiary”);

6.	Guangzhou Burning Rock Medical Laboratories Co., Ltd. (广州燃石医学检验所有限公司), a company duly incorporated and validly existing under the Laws of the PRC and a wholly-owned subsidiary of the Beijing Subsidiary (the “Guangzhou Laboratories Subsidiary”);

7.	Guangzhou Burning Rock Biotechnology Co., Ltd. (广州燃石生物科技有限公司), a company duly incorporated and validly existing under the Laws of the PRC and a wholly-owned subsidiary of the Beijing Subsidiary (the “Guangzhou Biotechnology Subsidiary”);

Guangzhou Burning Rock Medical Equipment Co., Ltd. (广州燃石医疗器械有限公司), a company duly incorporated and validly existing under the Laws of the PRC and a wholly-owned subsidiary of the Beijing Subsidiary (the “Guangzhou Equipment Subsidiary”), together with the Shanghai Subsidiary, the Beijing Subsidiary, the Guangzhou Laboratories Subsidiary, and the Guangzhou Biotechnology Subsidiary, the “Domestic Companies”, and each a “Domestic Company”, the Domestic Companies together with the Company, HK Company and WFOE and any subsidiary or affiliate of the foregoing (if any), collectively the “Group Companies”);

9.	The individual listed on Schedule I-A attached hereto (the “Founder”);

10.	BRT Bio Tech Limited, an exempted company duly incorporated and valid existing under the Laws of the British Virgin Islands (the “Holding Entity”);

11.	Each of the individuals listed on Schedule I-B attached hereto (each such individual, “Management Shareholder” and, collectively, the “Management Shareholders”, and together with the Founder and the Holding Entity, the “Key Holders” and each a “Key Holder”); and

12.	Each of the Persons listed on Schedule II attached hereto (each such Person, an “Investor”, collectively, the “Investors”).

Each of the parties to this Agreement is referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized terms used herein shall have the meaning set forth in Schedule III attached hereto.

RECITALS

WHEREAS, the Company owns 100% equity interest in the HK Company, the HK Company owns 100% of the equity interest of the WFOE which in turn Controls the Beijing Subsidiary by Captive Structure.

WHEREAS, the WFOE and the Domestic Companies are mainly engaged in the business of biological science (the “Business”). The Company seeks expansion capital to grow the Business and, correspondingly, seeks to secure an investment from the Investors, on the terms and conditions set forth herein.

WHEREAS, the Investors desire to purchase from the Company the Series C Closing Shares (as defined in Section 1.1) and the Company desires to sell the Series C Closing Shares to the Investors pursuant to the terms and subject to the conditions of this Agreement.

WHEREAS, Evergreen, the Company, the Founder and the Holding Entity entered into a Convertible Note Purchase Agreement dated January 10, 2017 and a Convertible Note Purchase Agreement dated May 2, 2017 respectively, pursuant to which the Company issued two convertible promissory notes (the “Convertible Promissory Notes”) to Evergreen with the principal amount of US$2,000,000 and US$15,000,000 respectively (the “CB Principal”). Pursuant to the terms of the Convertible Promissory Notes, Evergreen is entitled to, at its sole discretion, convert the entire principal amount of the Convertible Promissory Notes and any and all accumulated but unpaid interest thereon as of January 31, 2019 into the Series C Preferred Shares to be issued by the Company at the Closing (as defined below).

WHEREAS, the Company desires to repurchase from the Holding Entity certain series A+ preferred shares of the Company pursuant to the terms and subject to the conditions of a Share Repurchase Agreement entered into by and between the Company and the Holding Entity dated January 31, 2019 (the “Repurchase”).

WHEREAS, the Parties desire to enter into this Agreement and make the respective representations, warranties, covenants and agreements set forth herein on the terms and conditions set forth herein.

NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:

1.	ISSUANCE OF SERIES C PREFERRED SHARES AND WARRANT.

1.1	Sale and Issuance of the Series C Closing Shares.

Subject to the terms and conditions of this Agreement and save for the conversion of the Convertible Promissory Notes as provided for under Section 1.2 below, at the Closing (as defined below), each Investor, severally and not jointly, agrees to subscribe for and purchase, and the Company agrees to issue and sell to the Investors, that number of series C preferred share of par value of US$ 0.0001 (the “Series C Closing Shares”) set forth opposite such Investor’s name with the purchase price per share on Schedule II attached hereto, with each Investor to pay as consideration for such Series C Closing Shares the aggregate purchase price set forth opposite such Investor’s name on Schedule II attached hereto (the “Purchase Price”). The Series C Preferred Shares shall have the rights and privileges as set forth in the Amended M&A.

1.2	Conversion.

Subject to the terms and conditions of this Agreement, at the Closing and concurrently with the sale and purchase of the Series C Closing Shares, the entire CB Principal and any and all accumulated but unpaid interest thereon as of January 31, 2019 (the “Conversion Price”) shall, upon election of Evergreen, be converted into (and the Company shall issue) such number of Series C Preferred Shares of the Company to be issued to Evergreen as set forth opposite Evergreen’s name on Schedule II attached hereto (the “Converted Shares”). Immediately following the issuance of the Converted Shares pursuant to this Section 1.2 and the issuance of a deed of release by Evergreen, the Company shall be released from all its ongoing obligations and liabilities under the Convertible Promissory Notes. The number of the Converted Shares shall be determined by dividing (i) the Conversion Price by (ii) the price per share of the Converted Shares which shall be equal to 95% of the purchase price per share of the Series C Closing Shares purchased by other Investors (other than Holding Entity). No fractional shares of the Company will be issued to Evergreen. Notwithstanding the foregoing, the conversion of the Converted Shares shall be regarded as being completed upon Evergreen’s issuance of a conversion notice and a deed of release to the Company (the “Conversion Date”). For the avoidance of doubt, from the date of Closing (as defined below) until the Conversion Date, no interest shall be accrued under the Convertible Promissory Notes.

The capitalization table of the Company immediately prior to and after the Closing is enclosed hereto as Schedule I-C and Schedule I-D respectively.

1.3	Issuance of the GIC Warrant.

Subject to the terms and conditions of this Agreement, at the Closing (as defined below), the Company shall issue to GIC an warrant in the form attached hereto as Exhibit E (the “GIC Warrant”), pursuant to and subject to the terms and conditions thereof, GIC shall be entitled to purchase 2,129,900 Series C Preferred Shares at a per share exercise price of US$4.695056 per share (subject to adjustment from time to time due to share splits, share subdivisions or combinations of shares) in an aggregate consideration of US$10,000,000.

1.4	Closing.

(a)

Closing. Subject to the fulfillment of the conditions set forth in Section 2 and Section 3 below (other than conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of such conditions), the consummation of the sale of the Series C Closing Shares and issuance of the Converted Shares (the “Closing”) shall take place remotely via the exchange of documents and signatures at such time and place as the Company and the Investors may mutually agree upon at the Closing.

(b)

Delivery by the Company at Closing. Provided that the Closing shall take place no later than ten (10) Business Days following the satisfaction or waiver of the applicable conditions with respect to the Closing separately and not jointly by the Investors set forth in Section 2 and Section 3 below. At the Closing, in addition to any items the delivery of which is made an express condition to the Investor’s obligations at the Closing pursuant to Section 2 below, the Company shall deliver to each Investor:

(i)

a copy of the updated register of members of the Company, certified by the registered agent of the Company, reflecting the issuance to such Investor of the Series C Closing Shares and the Converted Shares being purchased by or issued to (as the case may be) such Investor at the Closing;

(ii)

a copy of the updated register of directors of the Company, certified by the registered agent of the Company, evidencing the appointment of the director as contemplated by Section 2.16 hereof;

(iii)

the copies of the duly executed and sealed certificate or certificates issued in the name of such Investor representing the Series C Closing Shares and/or the Converted Shares being purchased by such Investor at the Closing;

(iv)

only to GIC, the GIC Warrant duly executed and issued by the Company;

(v)

a copy of a compliance certificate executed by the chief executive officer of the Company dated as of the Closing in the form attached hereto as Exhibit G, stating that the conditions specified in this Section 2 have been fulfilled as of the Closing; and

(vi)

the copies of the board and/or members resolutions (as appropriate) of the applicable Group Companies approving the Transaction Documents and transactions contemplated herein.

(c)

Payment by the Investors. No later than ten (10) Business Days upon the Closing, each Investor shall deposit its respective portion of the Purchase Price as indicated opposite such Investor’s name on Schedule II by wire transfer of immediately available U.S. dollar funds into the Closing Account. No Conversion Price shall be paid or deposited by Evergreen, but Evergreen shall issue a conversion notice and a deed of release to the Company no later than ten (10) Business Days upon the Closing.

(d)

Closing Account. Except as provided otherwise herein, payment of the Purchase Price by the Investors to the Company shall be made by remittance of immediately available funds to the bank account designated by the Company as detailed in Schedule IX hereof (the “Closing Account”), or by issuance of a conversion notice and a deed of release to the Company.

(e)

Several and Not Joint Obligations. The Investors’ respective obligations, undertakings, warranties, representations and liabilities under this Agreement are several and not joint. In the event that an Investor fails to or decides not to close the purchase and sale of the applicable Series C Closing Shares or the conversion into the Converted Shares contemplated hereunder, each of the other Investors may elect at its sole discretion to proceed or not to proceed with the Closing, provided that if such other Investor elects to proceed with the Closing, the relevant provisions under the Transaction Documents shall be or have been adjusted accordingly as appropriate.

2.	CONDITIONS TO THE OBLIGATIONS OF THE INVESTORS AT CLOSING.

The obligations of each Investor to purchase the applicable Series C Closing Shares at the Closing or, with respect to Evergreen, its obligations relating to the conversion into the Converted Shares at the Conversion Date, as the case may be are subject to the fulfillment, to the satisfaction of such Investor on or before the Closing, of each of the following conditions, unless otherwise waived, severally and not jointly, in writing by such Investor:

2.1	Representations and Warranties.

The representations and warranties of the Warrantors contained in Schedule V shall be true, complete and correct in all material respects when made and shall be true, complete and correct in all material respects on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing, except for those representations and warranties (i) that already contain any materiality qualification, which such representations and warranties, to the extent already so qualified, shall instead be true and correct in all respects as so qualified as of such date and (ii) that address matters only as of a particular date, which representations will have been true and correct in all material respects (subject to clause (i)) as of such particular date.

2.2	Performance.

Each Warrantor shall have performed and complied with all obligations and conditions contained in the Transaction Documents that are required to be performed or complied with by them, on or before the Closing.

2.3	No Prohibition; Authorizations.

No provision of any applicable Laws shall prohibit the consummation of any transactions contemplated by the Transaction Documents. The Warrantors shall have obtained all authorizations, approvals, waivers or permits of any Person or any Governmental Authority necessary for the consummation of all of the transactions contemplated by this Agreement and other Transaction Documents, including without limitation any authorizations, approvals, waivers or permits that are required in connection with the lawful issuance of the Series C Closing Shares, the Converted Shares and the GIC Warrant, and all such authorizations, approvals, waivers and permits shall be effective as of the Closing, and the evidence of all the foregoing shall have been delivered to such Investor prior to the Closing and shall be in form and substance reasonably satisfactory to such Investor. The Company shall have fully satisfied (including with respect to rights of timely notification) or obtained enforceable waivers in respect of any preemptive rights or similar rights directly or indirectly affecting any of its shares or securities, as applicable.

2.4	Proceedings and Documents.

All corporate and other proceedings of each Group Company in connection with the transactions contemplated at the Closing and all documents incidental thereto, including without limitation, written approval from all of the current directors and/or shareholders or holders of equity interests of each Group Company, as applicable, with respect to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in form and substance to such Investor, and such Investor (or their legal counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested.

2.5	No Material Adverse Effect.

Since the Statement Date through the date of the Closing, no event, circumstance or change shall have occurred that, individually or in the aggregate with one or more other events, circumstances or changes, have had or reasonably could be expected to have a Material Adverse Effect on the Company or any other Group Company.

2.6	Investment Committee Approval.

Such Investor’s investment committee (or similar governance body) shall have approved the execution of this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby.

2.7	Corporate Approval and Documents.

Such Investor shall have received true, complete and correct copies of the resolutions of the board of directors and/or shareholders (as appropriate) of each of the Group Companies and such other agreements, schedules, exhibits, certificates, documents, financial information and filings which are reasonably required in connection with or relating to the transactions contemplated hereby, all in form and substance satisfactory to such Investor.

2.8	Constitutive Documents.

The Company shall have delivered to such Investor (a) copies of the current articles of association (or other comparable corporate Charter Documents), including all amendments thereto, of the Group Companies, and (b) current business licenses or incorporation certificate of the Group Companies.

2.9	Amended and Restated Memorandum and Articles.

The current effective memorandum and articles of association of the Company shall have been amended and restated as set forth in the form attached hereto as Exhibit A (the “Amended M&A”). Such Amended M&A shall have been duly adopted by all necessary actions of the Board of Directors and/or the members of the Company, and such adoption shall have become effective on or prior to the Closing with no alternation or amendment as of the Closing.

2.10	Amended and Restated Shareholders’ Agreement.

The Company, the Key Holders, and the Investors and certain other parties shall have executed and delivered a Fourth Amended and Restated Shareholders’ Agreement (the “Restated Shareholders’ Agreement”) in the form attached hereto as Exhibit B.

2.11	Indemnification Agreement.

The Company shall have executed and delivered the Indemnification Agreement with respect to the director of the Company appointed by GIC in the form and substance attached hereto as Exhibit C.

2.12	Management Rights Letter.

The Company shall have executed and delivered to such Investor that is not already an existing shareholder of the Company prior to the Closing a Management Rights Letter in the form attached hereto as Exhibit D.

2.13	GIC Warrant.

The Company shall have executed and delivered to GIC on or prior to the Closing the GIC Warrant in the form attached hereto as Exhibit E.

2.14	Opinion of PRC Counsel and Cayman Counsel.

Such Investor shall have received from PRC legal counsel and Cayman legal counsel of the Company respectively a legal opinion, dated as of the Closing, in a form and substance satisfactory and acceptable to such Investor attached hereto as Exhibit F.

2.15	Compliance Certificate.

Such Investor shall have received a certificate executed and delivered by the chief executive officer of the Company dated as of the Closing in the form attached hereto as Exhibit G, stating that the conditions specified in this Section 2 (exclusive of Section 2.6) have been fulfilled as of the Closing.

2.16	Board of Directors.

As of the Closing, the authorized size of the Board of Directors of the Company shall be eight (8) and the Board of Directors shall be comprised of two (2) directors appointed by HAN Yusheng (汉雨生) (including HAN Yusheng (汉雨生) himself) and six (6) directors appointed by the Preferred Shareholders (including one (1) director appointed by GIC and other five (5) directors appointed according to the Restated Shareholders’ Agreement). The Company shall deliver a copy of an updated register of directors reflecting the forgoing composition of the Board of Directors to GIC, certified as a true and correct copy by the Company’s registered agent. Each director shall have one (1) vote for each of the matters submitted to the Board of Directors, except that HAN Yusheng (汉雨生) shall have six (6) votes.

2.17	Closing Deliveries.

The Company shall have delivered all of the various items required to be delivered to such Investor at the Closing under Section 1.4.

3.	CONDITIONS OF THE OBLIGATIONS OF THE COMPANY AT CLOSING.

The obligations of the Company to issue and sell the Series C Closing Shares to an Investor at the Closing are subject to the fulfillment by such Investor, on or before the Closing, of each of the following conditions, unless otherwise waived by writing:

3.1	Representations and Warranties.

The representations and warranties of such Investor contained in Schedule VII shall be true, complete and correct in all material respects as of the Closing.

3.2	Performance.

Such Investor shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing.

3.3	Execution of Transaction Documents.

Such applicable Investor shall have executed and delivered to the Company the applicable Transaction Documents, to which such applicable investor is a party, on or prior to the Closing.

3.4	Conversion Date.

With respect to the conversion into the Converted Shares at the Conversion Date, the obligations of the Company are subject to the fulfillment by Evergreen, on or before the Conversion Date, of each of the above conditions and issuance of a conversion notice and a deed of release to the Company, unless otherwise waived by writing.

4.	REPRESENTATIONS AND WARRANTIES OF THE WARRANTORS.

The Warrantors, jointly and severally and with respect to itself only, represent and warrant to the Investors that the statements contained in Schedule V attached hereto are true, correct and complete with respect to (i) each Warrantor, on and as of the Execution Date, and (ii) each Warrantor, on and as of the Closing (with the same effect as if made on and as of the date of the Closing), subject to such exceptions as set forth on the Disclosure Schedule attached hereto as Schedule VI (the “Disclosure Schedule”), which exceptions shall be deemed to be representations and warranties as if made hereunder.

5.	REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.

Each Investor, severally but not jointly, represents and warrants to the Company that the statements contained in Schedule VII attached hereto are true, correct and complete with respect to such Investor as of the Execution Date and the Closing.

6.	UNDERTAKINGS.

6.1	Facilitating the Closing.

Each Warrantor shall use its best efforts to cause the satisfaction of all the conditions precedent set forth in Sections 2 (exclusive of Section 2.6) hereof.

6.2	Access.

From the date hereof until the Closing, the Warrantors shall permit GIC, or any representative thereof, to (a) visit and inspect the properties of the Group Companies, (b) inspect the contracts, books of account, records, ledgers, and other documents and data of the Group Companies, (c) discuss the business, affairs, finances and accounts of the Group Companies with officers and employees of the Group Companies, and (d) review such other information as the Investors reasonably request, in such a manner so as not to unreasonably interfere with their normal operations.

6.3	Ordinary Course of Business.

From the Execution Date until the earlier of the Termination Date or the Closing, the Warrantors shall cause each of the Group Companies (a) to be conducted in the ordinary course of Business and shall use its commercially reasonable efforts to maintain the present character and quality of the business, including without limitation, its present operations, physical facilities, working conditions, goodwill and relationships with lessors, licensors, suppliers, customers, employees and independent contractors, (b) to pay or perform its debts, taxes, and other obligations when due, (c) to maintain its assets in a condition comparable to their current condition, reasonable wear, tear and depreciation excepted, (d) to report to the relevant Investors concerning the status of its business, operations and finance upon a reasonable request by an Investor, and (e) to take all actions reasonably

necessary to consummate the transactions contemplated by this Agreement and the other Transaction Documents promptly, including the taking of all reasonable acts necessary to cause all of the conditions precedent (exclusive of Section 2.6) of the Investors to be satisfied

6.4	Exclusivity.

From the Execution Date until the earlier of the Termination Date or the Closing, Warrantors shall not, and they shall not permit any of their representatives or any Group Company to, directly or indirectly (i) discuss the sale of any Equity Securities or any other instruments convertible into the Equity Securities of any Group Company with any third party, or (ii) provide any information with respect to any Group Company to a third party in connection with a potential investment by such third party in any Equity Securities or any other instruments convertible into the Equity Securities of such Group Company, or (iii) close any financing transaction of any Equity Securities or any other instruments convertible into the Equity Securities of any Group Company with any third party (the “Exclusivity Period”). This Section 6.4 shall terminate and be of no further force and effect immediately following the Closing.

6.5	Use of Proceeds.

In accordance with the directions of the Company’s Board of Directors, as it shall be constituted in accordance with the Restated Shareholders’ Agreement, the Company will use the proceeds from the sale of the Series C Closing Shares and the Converted Shares for general working capital, ordinary business expansion and other general corporate purposes for the Group Companies in accordance with the budget plans and business plans of the Group Companies approved by the board of directors of the Company (including no less than one half (1/2) of the Key Investors’ Directors). Subject to the aforementioned budget plans and business plans, (i) within six (6) month after the Closing, in no event shall the proceeds from the sale of the Series C Closing Shares and the Converted Shares be applied or used in the payment of any debts or obligations of any Group Company or its subsidiaries without the prior consent of the Investors, and (ii) in no event shall the proceeds from the sale of the Series C Closing Shares and the Converted Shares be applied or used in the repurchase or cancellation of securities held by any shareholders of the Group Companies or for any other purpose without the prior consent of the Majority Series C Preferred Shares Holders (as defined in the Restated Shareholders’ Agreement).

6.6	Notice of Certain Events.

If at any time before the Closing, any Warrantor comes to know of any material fact or event which: (i) is in any way inconsistent with any of the representations and warranties in this Agreement; (ii) suggests that any fact warranted hereunder may not be as warranted or may be misleading; (iii) any Action commenced or threatened in writing against any Group Company; or (iv) might affect the willingness of a prudent investor to purchase the shares of the Company on the terms contained in the Transaction Documents or the amount of the consideration a prudent investor would be prepared to pay for the shares of the Company; then the Warrantors shall immediately notify each of the Investors in writing, describing the fact or event in reasonable detail.

6.7	Compliance.

The Company and each Group Company shall comply with all applicable laws and regulations of any jurisdiction in all material respects, including without limitation compliance with applicable PRC Laws relating to the Business, Intellectual Property, taxation, employment, anti-bribery (including FCPA), contributions required to be made under the PRC social insurance and the PRC housing schemes and requirements under the Employee Benefit Plans, and shall provide satisfactory evidence of the same to the Investors as may be requested by such Investors. Without prejudicing the generality of the foregoing, after the Closing, the relevant Group Company shall, and the Warrantors shall cause such Group Company to, use reasonable best efforts to rectify any non-compliance with applicable Laws.

6.8	Filing of Amended M&A.

The Company shall submit the Amended M&A for filing with the Registrar of Companies of the Cayman Islands and obtain the duly filed and stamped Amended M&A as soon as possible after the Closing, but in no event later than fifteen (15) Business Days after the Closing.

6.9	Circular 37 Registration.

Notwithstanding anything to the contrary contained in this Agreement and the other Transaction Documents, as soon as practicable after the Closing but in no event later than twelve (12) months following the Closing, if any holder or beneficial owner of any equity security of the Company (other than any direct or indirect holder or beneficial owner of the Investors and other exiting investors of the Company) (each, a “Security Holder”) is a “Domestic Resident” as defined in Circular 37 and is subject to the SAFE registration or reporting requirements under Circular 37, the Warrantors shall cause such Security Holder to comply with the applicable SAFE registration or reporting requirements under SAFE Rules and Regulations., including but not limitation, (i) the application of the SAFE registration certificate, and (ii) to the extent practicable, the amendment of his/her existing SAFE registration certificates with the applicable Governmental Authorities in accordance with applicable Laws.

6.10	Trustee Shareholders in Beijing Subsidiary.

As soon as practicable but in no event later than sixty (60) days after the Closing or such other later date as agreed by holders of at least fifty-one percent (51%) of the then issued and outstanding Series C Preferred Shares, the Warrantors shall cause (i) the shareholders of the Beijing Subsidiary to enter into such necessary documents with the nominees appointed by the Investors to adjust the equity percentage in the Beijing Subsidiary of such nominees accordingly to mirror the shareholding percentage in the Company held by such Investors respectively (the “Equity Adjustment”); (ii) the Cooperation Documents to be duly restated and executed in accordance with the foregoing adjustment of the equity

percentage in the Beijing Subsidiary; (iii) the holding of equity interest of the nominees of the Investors as contemplated under this Section 6.10 to be filed with the SAMR or its local branch equity, and (iv) the share pledge under the restated Cooperation Documents to be registered with the SAMR or its local branch equity in accordance with Section 6.12.

6.11	Licenses and Permits.

(a)

As soon as practicable but in no event later than twelve (12) months after a medical device product of the Group Companies (including but not limited to the in vitro diagnostic kits products) meets all of the following conditions, the Domestic Companies shall, and the Warrantors shall procure the Domestic Companies to, use its commercially best effort to apply for applicable medical device registration certificates (医疗器械注册证) or medical device filing certificates (医疗器械备案凭证) from competent Governmental Authorities in relation to such medical device product of the Group Companies in accordance with applicable Laws: (i) such medical device product has met all application requirements of medical device registration certificates (医疗器械注册证) or medical device filing certificates (医疗器械备案凭证) under the applicable Laws and regulations, and (ii) such medical device product is ready to be launched to the market.

(b)

To the extent permitted by the applicable laws and commercially practicable, the WFOE shall, and the Warrantors shall procure the WFOE to, (a) use commercially reasonable efforts to cease the distribution business of medical devices, including but not limited to the vitro diagnostic kits and the gene sequencing equipment, and transfer such business to the Guangzhou Equipment Subsidiary; or (b) apply for and obtain the Medical Device Operation License (医疗器械经营许可证) or other applicable licenses or filings with competent Governmental Authorities, and extend the business scope of the WFOE to include such business.

6.12	Equity Pledge Registration

As soon as practicable but in no event later than three (3) months following the completion of the Equity Adjustment and relevant registration with the SAMR or its local branch in accordance with Section 6.10, the Warrantors shall cause the WFOE, the Beijing Subsidiary and each equity holder of the Beijing Subsidiary to complete the relevant registration with respect to the equity pledge as contemplated by the Equity Pledge Agreement (股权质押合同) to be entered into by and among the WFOE, the Beijing Subsidiary and the equity holders of the Beijing Subsidiary.

6.13	Intellectual Property Right Registration

As soon as practicable after the Closing, the Group Companies shall, and the Warrantors shall procure the Group Companies to, complete the application of software copyright registration of the information systems relating to the operation of the Business, including but not limited to LAVA, FIRE and EDC (Burning Rock follow-up system).

6.14	Social Insurance Benefit and Housing Fund

(a)

within two (2) months following the Closing or any longer time period approved by all the Investors, each Domestic Company shall, and the Warrantors shall procure each Domestic Company to obtain the registration of relevant social insurance in accordance with applicable Laws.

(b)

as soon as practicable after the Closing, the Group Companies shall comply with all applicable PRC labor Laws in all material respects, including without limitation (i) complying with all Laws pertaining to income tax (including individual income tax), welfare funds, social insurance benefits, medical benefits, insurance, retirement benefits and pensions, and (ii) making contributions for all underpaid statutory social insurance benefits, housing provident funds and individual income tax for all of their employees as required by PRC Laws in the past (including, without limitation, all unpaid statutory social insurance benefits and housing provident funds for formal employees during the probation period as required by applicable Laws).

6.15	Revision of Cooperation Documents

As soon as practicable following the Closing, the Warrantors shall use its best efforts to make appropriate adjustments and supplements to the Cooperation Documents, including but not limited to causing the spouse of the Founder (if applicable) to sign a consent letter in the form and substance satisfactory to the Investors, and any other appropriate or necessary adjustments and supplements to the reasonable satisfaction of the Investors and as may be necessary and advisable for the consummation of an initial public offering.

7.	CURE OF BREACHES; INDEMNITY.

7.1	In the event of:

(a)

any material breach or violation of, or inaccuracy or misrepresentation in, any representation or warranty made by the Warrantors contained herein or any of the other Transaction Documents (except for those disclosed in the Disclose Schedule);

(b)

any material breach or violation of any covenant or agreement contained herein or any of the other Transaction Documents;

(c)

any undisclosed liabilities with respect to any Group Company which incurred prior to the Closing, regardless of whether such non-disclosure constitutes a breach of representation or warranties of the Warrantors hereunder;

(d)

any dispute with or claim by any employee of the Domestic Companies including, without limitation, any severance or similar payment required to be made by any Group Company to its former employees, any underpayment of social insurance and housing schemes and any omission or failure on the part of the Domestic Companies to pay any social insurance or any housing schemes or enter into the relevant employment agreements with such employees under the applicable Laws which incurred on or before the Closing (except for those disclosed in the Disclose Schedule);

(e)

any fines, penalties and interest imposed on any Group Company by relevant Governmental Authority as a result of using agency to pay social insurance benefits and housing provident funds;

(f)

any dispute with or claim by the contracting party of any Group Company in connection with any agreements or contracts that any Group Company has entered into prior to the Closing (except for those disclosed in the Disclose Schedule);

(g)

any non-compliance by the Group Companies and the Key Holders with PRC Laws of foreign exchange in connection to the Company’s operation and business prior to the Closing; or

(h)

any liability resulting from the operating the Business by the Group Companies without appropriate permits, licenses or authorizations for such Business on or before the Closing, including but not limited to (a) the failure to obtain applicable medical device registration certificates (医疗器械注册证) or medical device filing certificates (医疗器械备案证) for the medical device products of the Group Companies; (b) the use of unregistered medical devices by the Group Companies; (c) Guangzhou Laboratories Subsidiary’s failure to obtain the qualification of Pilot Entities for the Clinical Application of High Throughput-Sequencing (高通量基因测序技术临床应用试点单位) or other equivalent qualifications for the clinical technology application of high throughput-sequencing testing; (d) the WFOE’s engaging of distribution business in relation to the medical devices without Medical Device Operation License (医疗器械经营许可证),; (e) the Group Companies’ conducting of business outside of the registered scope of the Medical Institution Practicing License (医疗机构执业许可证), including but not limited to pathologic diagnosis, or (f) the sale of products or provision of services in violation of the fair competition and non-donation requirements under applicable Laws, including but not limited to adopting “linkage sales” model.

(each of (a) - (h), a “Breach”) the Warrantors shall, jointly and severally and to the extent commercially and legally practicable, cure such Breach (to the extent that such Breach is curable) to the satisfaction of the Investors (it being understood that any cure shall be without recourse to cash or assets of any of the Group Companies). Notwithstanding the foregoing, the Warrantors shall also, jointly and severally, indemnify the Investors and their respective Affiliates, limited partners, members, stockholders, directors employees, agents and representatives (each, an “Indemnitee”) for any and all, directly or indirectly, losses, liabilities, diminution in value, damages, liens, claims, obligations, settlements, deficiencies, penalty or settlement of any kind or nature imposed on or otherwise incurred or suffered by the Indemnitees, costs and expenses, including without limitation reasonable advisor’s fees and other reasonable expenses of investigation, defense and resolution of any Breach paid, suffered, sustained or incurred by the Indemnitees (each, an “Indemnifiable Loss”), resulting from, or arising out of, or due to, any Breach. Notwithstanding the foregoing, in the event that a Breach has been disclosed in the Disclosure Schedule, the indemnification liabilities as set forth in this Section 7 shall not apply to any Key Holder.

7.2

Notwithstanding the foregoing, the Warrantors shall, jointly and severally, indemnify and keep indemnified the Indemnitees and hold them harmless against any and all Indemnifiable Losses resulting from, or arising out of, or due to, any claim for tax which has been made or may hereafter be made against the Domestic Companies and any other Group Company wholly or partly in respect of or in consequence of any event occurring or any income, profits or gains earned, accrued or received by the Domestic Companies and any Group Company on or before the Closing and any reasonable costs, fees or expenses incurred and other liabilities which the Domestic Companies and any Group Company may properly incur in connection with the investigation, assessment or the contesting of any claim, the settlement of any claim for tax, any legal proceedings in which the Domestic Companies claims in respect of the claim for tax and in which an arbitration award or judgment is given for the Domestic Companies or Group Company and the enforcement of any such arbitration award or judgment, provided, however, that the Key Holders shall be under no liability in respect of the following taxation items:

(a)

that is promptly cured without recourse to cash or other assets of any Group Company;

(b)

to the extent that provision, reserve or allowance has been made for such tax in the audited consolidated Financial Statements of the Company;

(c)

if it has arisen in and relates to the ordinary course of business of the Domestic Companies since the Statement Date;

(d)

to the extent that the liability arises as a result only of a provision or reserve in respect of the liability made in the Financial Statements being insufficient by reason of any increase in rates of tax announced after the Closing with retrospective effect; or

(e)

to the extent that the liability arises as a result of legislation which comes into force after the Closing and which is retrospective in effect.

The survival period for any indemnity obligation relating to claims for tax matters arising under this Section 7.2 shall be the applicable statute of limitations for tax claims.

7.3

Subject to the second paragraph of Section 7.1, in the event that an Indemnitee suffers an Indemnifiable Loss as provided in Section 7.1 or Section 7.2 and the Group Companies are either unwilling or unable to fulfill their obligations under Section 7.1 or Section 7.2 to indemnify the Indemnitees for the full amount of such Indemnifiable Loss within sixty (60) days of receipt of written notice thereof from the Investors (the “Grace Period”), then the Key Holders, shall indemnify the Indemnitees such that the Indemnitees shall receive the full amount of such Indemnifiable Loss, provided that, to the extent such Indemnitees have recovered any Indemnifiable Loss from the Group Companies before the expiration of the Grace Period, the Key Holders shall not be obligated to indemnify the Indemnified Party with respect to such amount; provided, further, that the failure of any Group Company to pay any Indemnifiable Loss to such Indemnitees is not solely due to disapproval of such payment by the Investors or the director appointed by the Investors.

7.4

If an Investor or other Indemnitee believes that it has a claim that may give rise to an obligation of any Warrantor pursuant to this Section 7, it shall give prompt notice thereof to the Warrantors and the other Investors stating specifically the basis on which such claim is being made, the material facts related thereto, and the amount of the claim asserted. Any dispute related to this Section 7 shall be resolved pursuant to Section 8.15.

7.5

Notwithstanding any other provision of this Agreement or the other Transaction Documents but subject to Section 7.6 of this Agreement, except for any fraud, willful misconduct or willful concealment by any of the Warrantors, the maximum aggregate liability of Group Companies for indemnification to any Indemnitee under this Section 7 shall be limited to the aggregate Purchase Price and/or the Conversion Price applied to paid by the Indemnitee or its Affiliates (as the case may be) plus all dividends accrued and unpaid with respect to such shares held by the Indemnitee or its Affiliates); the maximum aggregate liability of each Key Holder for indemnification to any Indemnitee under this Section 7 shall be limited to the equity interest of such Key Holder in the Group Companies.

7.6

Notwithstanding Section 7.5 or anything contrary in the Transaction Documents, in the event of any fraud, willful misconduct or willful concealment by any of the Warrantors, the aggregate liability of the Key Holders shall not exceed 3 times of the aggregate Purchase Price paid by and/or the Conversion Price applied to the Indemnitee or its Affiliates (as the case may be) plus all dividends accrued and unpaid with respect to such shares held by the Indemnitee or its Affiliates.

8.	MISCELLANEOUS.

8.1	Survival of Warranties.

Unless otherwise set forth in this Agreement, the representations and warranties of the Warrantors contained in or made pursuant to this Agreement shall survive for two (2) years from the Closing and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Investors or the Company, provided that the Fundamental Warranties shall survive until the completion of the Qualified IPO (as defined in the Restated Shareholders’ Agreement) or an initial public offering of any equity securities of the Company, which is not a Qualified IPO and is approved by the Majority Series C Preferred Shares Holders (as defined in the Restated Shareholders’ Agreement).

8.2	Confidentiality.

(a)

Disclosure of Terms. The terms and conditions of this Agreement, any term sheet or memorandum of understanding entered into pursuant to the transactions contemplated hereby, all exhibits and schedules attached hereto and thereto, and the transactions contemplated hereby and thereby (collectively, the “Transaction Terms”), including their existence, shall be considered confidential information and shall not be disclosed by any Party (including its respective shareholders and representatives) hereto to any third party except as permitted in accordance with the provisions set forth below.

(b)

Permitted Disclosures. Notwithstanding the foregoing, the Company may disclose (i) the existence of the investment to its bona fide prospective investors, employees, bankers, lenders, accountants, legal counsels and business partners, or to any person or entity to which disclosure is approved in writing by the Investors, such approval not to be unreasonably withheld; and (ii) the transaction terms to its current shareholders, employees, bankers, lenders, accountants and legal counsels, in each case only where such persons or entities are under appropriate nondisclosure obligations substantially similar to those set forth in this Section 8.2, or to any person or entity to which disclosure is approved in writing by the Investors, which such approval is not to be unreasonably withheld. The Investors may disclose (i) the existence of the investment and the Transaction Terms to to its Affiliate, such Investor/or its fund manager’s and/or its Affiliate’s legal counsel, fund manager, auditor, insurer, accountant, consultant or to an officer, director, general partner, limited partner, its fund manager, shareholder, investment counsel or advisor, or employee of such Investor and/or its Affiliate (ii) any information for fund and inter-fund reporting purposes; (iii) any information as required by law, Governmental Authorities, exchanges and/or regulatory bodies, including by the Securities and Exchange Commission (or equivalent for other venues); (iv) any information to bona fide prospective purchasers/investors of any share, security or other interests in the Company; and (v) the fact of the investment to the public, in each case as it deems appropriate in its sole discretion. Any Party hereto may also provide disclosure in order to comply with applicable Laws, as set forth in Section 8.2(c) below.

(c)

Legally Compelled Disclosure. In the event that any Party is requested or becomes legally compelled (including without limitation, pursuant to any applicable tax, securities, or other Laws and regulations of any jurisdiction) to disclose the existence of this Agreement or content of any of the Transaction Terms as confirmed by advice from counsel, such party (the “Disclosing Party”) shall, if and to the extent that it can lawfully do so, provide the other parties with prompt written notice of that fact and shall consult with the other parties regarding such disclosure. At the request of another party, the Disclosing Party shall, to the extent reasonably possible and with the cooperation and reasonable efforts of the other parties, seek a protective order, confidential treatment or other appropriate remedy. In any event, the Disclosing Party shall furnish only that portion of the information that is legally required and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such information.

(d)

Other Exceptions. Notwithstanding any other provision of this Section 8.2, the confidentiality obligations of the Parties shall not apply to: (i) information which a restricted Party learns from a third party having the right to make the disclosure, provided the restricted Party complies with any restrictions imposed by the third party; (ii) information which is rightfully in the restricted Party’s possession prior to the time of disclosure by the protected Party and not acquired by the restricted Party under a confidentiality obligation; or (iii) information which enters the public domain without breach of confidentiality by the restricted Party.

(e)

Press Releases, Etc. No announcements regarding the Investors’ investment in the Company may be made by any Party hereto in any press conference, professional or trade publication, marketing materials or otherwise to the public without the prior written consent of the Investors and the Company, provided, that any such announcement made by any partner, limited partner, bona fide potential partner or bona fide potential limited partner of the Investors shall not be subject to the consent of the Company.

(f)

Other Information. The provisions of this Section 8.2 shall terminate and supersede the provisions of any separate nondisclosure agreement executed by any of the Parties with respect to the transactions contemplated hereby.

8.3	Transfer; Successors and Assigns.

The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties. Save as expressly provided in this Agreement, nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement. This Agreement and the rights and obligations therein may not be assigned by the Key Holders and the Group Companies without the written consent of the Investors; provided, however, that each Investor may assign this Agreement or any of its rights and obligations hereunder to one or more Affiliated Funds of such Investor without the consent of the Key Holders and the Group Companies.

8.4	Governing Law.

This Agreement shall be governed by and construed in accordance with the Law of Hong Kong as to matters within the scope thereof, without regard to its principles of conflicts of laws.

8.5	Counterparts; Facsimile.

This Agreement may be executed and delivered by facsimile or other electronic signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

8.6	Titles and Subtitles.

The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

8.7	Notices.

All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)

five (5) days after having been delivered by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after delivery by an internationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on Schedule VIII, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 8.7.

8.8	No Finder’s Fees.

Each Party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction.

8.9	Fees and Expenses.

Each Party shall pay all of its own costs and expenses incurred in connection with the negotiation, execution, delivery and performance of this Agreement and other Transaction Documents and the transactions contemplated hereby and thereby.

8.10	Attorney’s Fees.

If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of the Transaction Documents, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

8.11	Amendments and Waive

Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of (i) the Company and (ii) the Investor(s) that would purchase seventy percent (70%) or more of the Series C Preferred Shares to be issued in accordance with this Agreement. Any amendment or waiver effected in accordance with this paragraph shall be binding upon the Company, the Investors and all the other Parties. Notwithstanding the foregoing, this Agreement may not be amended or terminated and the observance of any term hereunder may not be waived with respect to any Investor without the written consent of such Investor, unless such amendment, termination or waiver applies to all Investors in the same fashion. The Company shall give prompt written notice of any amendment or termination hereof or waiver hereunder to any Party hereto that did not consent in writing to such amendment, termination or waiver. Any amendment, termination or waiver effected in accordance with this Section 8.11 shall be binding on all Parties hereto, even if they do not execute such consent. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.

8.12	Severability.

The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

8.13	Delays or Omissions.

No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

8.14	Entire Agreement.

This Agreement (including the Schedules and Exhibits hereto) and the other Transaction Documents constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.

8.15	Dispute Resolution.

(a)

Any dispute, controversy or claim arising out of or relating to this Agreement, or the interpretation, breach, termination or validity hereof, shall first be subject to resolution through consultation of the parties to such dispute, controversy or claim. Such consultation shall begin within seven (7) days after one Party hereto has delivered to the other Parties involved a written request for such consultation. If within thirty (30) days following the commencement of such consultation the dispute cannot be resolved, the dispute shall be submitted to arbitration upon the request of any Party with notice to the other Parties.

(b)

The arbitration shall be conducted in Hong Kong under the auspices of the Hong Kong International Arbitration Centre (the “HKIAC”). There shall be three arbitrators. The complainant and the respondent to such dispute shall each select one arbitrator within thirty (30) days after giving or receiving the demand for arbitration. Such arbitrators shall be freely selected, and the Parties shall not be limited in their selection to any prescribed list. The chairman of the HKIAC shall select the third arbitrator. If either party to the arbitration does not appoint an arbitrator who has consented to participate within thirty (30) days after selection of the first arbitrator, the relevant appointment shall be made by the chairman of the HKIAC.

(c)

The arbitration proceedings shall be conducted in English. The arbitration tribunal shall apply the Arbitration Rules of the HKIAC in effect at the time of the arbitration. However, if such rules are in conflict with the provisions of this Section 8.15, including the provisions concerning the appointment of arbitrators, the provisions of this Section 8.15 shall prevail.

(d)

The arbitrators shall decide any dispute submitted by the parties to the arbitration strictly in accordance with the substantive Law of Hong Kong and shall not apply any other substantive law.

(e)

Each Party hereto shall cooperate with any party to the dispute in making full disclosure of and providing complete access to all information and documents requested by such party in connection with such arbitration proceedings, subject only to any confidentiality obligations binding on the Party receiving the request.

(f)

The award of the arbitration tribunal shall be final and binding upon the disputing parties, and any party to the dispute may apply to a court of competent jurisdiction for enforcement of such award.

(g)

Any party to the dispute shall be entitled to seek preliminary injunctive relief, if possible, from any court of competent jurisdiction pending the constitution of the arbitral tribunal.

8.16	No Commitment for Additional Financing.

The Company acknowledges and agrees that no Investor has made any representation, undertaking, commitment or agreement to provide or assist the Company in obtaining any financing, investment or other assistance, other than the purchase of the Series C Preferred Shares as set forth herein and subject to the conditions set forth herein. In addition, the Company acknowledges and agrees that (i) no oral statements made by any Investor or its representatives on or after the date of this Agreement shall create an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment, (ii) the Company shall not rely on any such statement by any Investor or its representatives and (iii) an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment may only be created by a written agreement, signed by such Investor and the Company, setting forth the terms and conditions of such financing or investment and stating that the parties intend for such writing to be a binding obligation or agreement. Each Investor shall have the right, in its sole and absolute discretion, to refuse or decline to participate in any other financing of or investment in the Company, and shall have no obligation to assist or cooperate with the Company in obtaining any financing, investment or other assistance.

8.17	Rights Cumulative; Specific Performance.

Each and all of the various rights, powers and remedies of a Party will be considered to be cumulative with and in addition to any other rights, powers and remedies which such Party may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy will neither

constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such Party. Without limiting the foregoing, the Parties hereto acknowledge and agree irreparable harm may occur for which money damages would not be an adequate remedy in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to injunctive relief to address breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement.

8.18	No Waiver.

Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of, or failure to insist upon strict compliance with, any right, power or remedy power hereunder at any one or more times be deemed a waiver or relinquishment of such right, power or remedy at any other time or times.

8.19	No Presumption.

The Parties acknowledge that any applicable law that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived. If any claim is made by a Party relating to any conflict, omission or ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will be implied because this Agreement was prepared by or at the request of any Party or its counsel.

8.20	Exculpation Among Investors; Independent Nature of Investors’ Obligations and Rights

Each Investor agrees that no Investor nor the respective controlling persons, officers, directors, partners, agents, or employees of any Investor shall be liable to any other Investor for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Series C Preferred Shares. No Investor is responsible in any way for the performance or conduct of any other Investor in connection with the transactions contemplated hereby. Nothing contained herein or in any other Transaction Document, and no action taken by any Investor pursuant hereto or thereto, shall be or shall be deemed to constitute a partnership, association, joint venture, or joint group with respect to the Investors. Each Investor agrees that no other Investor has acted as an agent for such Investor in connection with the transactions contemplated hereby.

8.21	Third Party Beneficiaries.

Each of the Indemnitees shall be a third party beneficiary of this Agreement with the full ability to enforce Section 7 of this Agreement as if it were a Party hereto.

8.22	Termination of Agreement.

(a)

This Agreement may be terminated before the Closing as follows:

(1)

by mutual written consent of the Company and all of the Investors as evidenced in writing signed by each of the Company and the Investors;

(2)

by all of the Investors in the event of any material breach or violation of any representation or warranty, covenant or agreement contained herein or in any of the other Transaction Documents by any Warrantor;

(3)

by all of the Investors if any event, circumstance or change shall have occurred that, individually or in the aggregate with one or more other events, circumstances or changes, have had or reasonably could be expected to have a Material Adverse Effect on the Group Companies; or

(4)

by any Investor or the Company with respect to itself only if the Closing shall not have occurred on or before February 28, 2019, provided, however, that the right to terminate this Agreement under this Section 8.22 (a) (4) shall not be available to any party whose failure to fulfil any obligation under this Agreement shall have been the principal cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date. For avoidance of doubt, if the Agreement is terminated by an Investor according to this Section 8.22 (a) (4), the Agreement shall remain valid and enforceable between the Company and any other Investors who have not elected to terminate this Agreement.

(b)

Effect of Termination. The date of termination of this Agreement pursuant to Section 8.22(a) hereof shall be referred to as “Termination Date”. In the event of termination by the Company and/or the Investors pursuant to Section 8.22(a) hereof, written notice thereof shall forthwith be given to the other Party and this Agreement shall terminate, and the purchase of the Series C Preferred Shares hereunder shall be abandoned and rescinded, without further action by the Parties hereto. Each of the Parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to the Warrantors or the Investors; provided that no such termination shall relieve any party hereto from liability for any breach of this Agreement. The provisions of this Section 8.22, Section 7, Section 8.2, Section 8.4, Section 8.9, and Section 8.15, hereof shall survive any termination of this Agreement.

8.23	Restriction on the Use of “GIC” and Confidentiality.

Without the written consent of GIC, the Group Companies, their shareholders (excluding GIC), and the Founder, shall not use the name or brand of GIC or its Affiliate, claim itself as a partner of GIC or its Affiliate, make any similar representations. Without the written approval of GIC, the Group Companies, their shareholders (excluding GIC), and the Founder, shall not make or cause to be made, any press release, public announcement or other disclosure to any third party in respect of this Agreement or GIC’s subscription of share interest of the Company.

8.24	Restriction on the Use of “LAV” and Confidentiality.

Without the written consent of LAV, the Group Companies, their shareholders (excluding LAV), and the Founder, shall not use the name or brand of LAV or its Affiliate, claim itself as a partner of LAV or its Affiliate, make any similar representations. Without the written approval of LAV, the Group Companies, their shareholders (excluding LAV), and the Founder, shall not make or cause to be made, any press release, public announcement or other disclosure to any third party in respect of this Agreement or LAV’s subscription of share interest of the Company.

8.25	Restriction on the Use of “SEQUOIA” and Confidentiality.

Without the written consent of SEQUOIA, the Group Companies, their shareholders (excluding SEQUOIA), and the Founder, shall not use the name or brand of SEQUOIA or its Affiliate, claim itself as a partner of SEQUOIA or its Affiliate, make any similar representations. Without the written approval of SEQUOIA, the Group Companies, their shareholders (excluding SEQUOIA), and the Founder, shall not make or cause to be made, any press release, public announcement or other disclosure to any third party in respect of this Agreement or SEQUOIA’s subscription of share interest of the Company.

8.26	Most-Favored-Nation Treatment.

Except for (i) the issuance of the Warrant to GIC, (ii) GIC’s appointment right of the GIC Director (as defined in the Restated Shareholders’ Agreement), (iii) LAV’s appointment right of an Observer (as defined in the Restated Shareholders’ Agreement), and (iv) the Holding Entity’s and Evergreen’s purchase price per share set forth in this Agreement, in the event that the Company grants any other Investor or existing shareholders, in this financing or any other financing occurred on or before the Closing, any rights, privileges or protections more favorable than those granted to the Investor under the Transaction Documents, the Warrantors shall use its best efforts to achieve the purpose that the Investors would, at their respective option, be entitled to the same rights, privileges or protections at least pari passu with such investors or shareholders, unless otherwise waived in writing by such Investor.

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