EX-4.4

EX-4.4 4 d75491dex44.htm EX-4.4 EX-4.4

Exhibit 4.4

FIFTH AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT

THIS FIFTH AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT (this “Agreement”) is entered into on September 11, 2019 (the “Signing Date”), by and among:

(1) Tuya Inc., a company duly established and existing under the laws of the Cayman Islands (the “Company”),

(2) Tuya (HK) Limited, a directly wholly owned subsidiary of the Company duly established and existing under the laws of Hong Kong (the “HK Co”),

(3) Hangzhou Tuya Information Technology Co., Ltd. (杭州涂鸦信息技术有限公司), a wholly foreign owned enterprise incorporated under the Laws of the PRC (the “WFOE”),

(4) Hangzhou Tuya Technology Co., Ltd. (杭州涂鸦科技有限公司), a company duly established and existing under the laws of the PRC (“Domestic Company” and together with the WFOE, the “Local Affiliates”),

(5) the parties listed on Part I of Exhibit A attached hereto (the “Key Holders”, and each a “Key Holder”),

(6) the parties listed on Part II of Exhibit A attached hereto (the “Founder Holdcos”, and each a “Founder Holdco”),

(7) the parties listed on Part III of Exhibit A (the “Investors”, and each an “Investor”) attached hereto; and

(8) Future Fund Investment Company No. 1 Pty Ltd (ACN 130 318 188), an Australian proprietary company (“FF Beneficial Investor”).

Each of the forgoing parties is referred to herein individually as a “Party” and collectively as the “Parties”.

RECITALS

A. The Company owns one hundred percent (100%) interest in the HK Co. The HK Co owns one hundred percent (100%) interest in the WFOE.

B. The Group Companies, certain Investors, the Key Holders and the Founder Holdcos are parties to that certain Fourth Amended and Restated Shareholders’ Agreement dated May 2, 2018 (the “Prior Agreement”).

C. The Prior Agreement may be amended or modified by an instrument in writing signed by the Company, the Key Holders holding a majority of the outstanding Ordinary Shares held by Key Holders then providing services to any Group Company as employees or consultants, and the investors holding a majority of the outstanding Preferred Shares then held by the investors party to the Prior Agreement.

D. The Company and certain investors are entering into that certain Series D Preferred Share Purchase Agreement dated as of September 11, 2019 (the “Share Purchase Agreement”).

E. The Company, the undersigned Key Holders and the undersigned Investors, together constituting the requisite parties necessary to amend the Prior Agreement, desire to amend and restate the Prior Agreement.

F. 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.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1.	DEFINITIONS

Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall have the meanings set forth in Exhibit B.

2.	CORPORATE GOVERNANCE

2.1 Board of Directors.

(i) From and after the Initial Closing, the Company shall have a board of directors (the “Board”) consisting of up to five (5) directors as follows:

(a) New Enterprise Associates 14, L.P., NEA 15 Opportunity Fund, L.P. and their Affiliates (collectively “NEA”) shall be entitled to designate two (2) directors of the Board who are elected by the holders of the Series A Preferred Shares (the “Series A Directors”). The Series A Directors shall initially be Scott Sandell and Carmen Chang.

(b) The holders of a majority of the Ordinary Shares then outstanding, voting as a single class, shall be entitled to designate three (3) directors of the Board (the “Ordinary Directors”), one of whom shall be the Company’s then-current chief executive officer (the “CEO Director”). The Ordinary Directors shall initially be Xueji Wang and Liaohan Chen, with the third Ordinary Director seat being vacant. If there is a vacancy among the Ordinary Directors (other than the CEO Director), the CEO Director shall be entitled to two (2) votes.

(ii) Any Shareholder or group of Shareholders entitled to designate any individual to be elected as a director of the Board pursuant to this Section 2.1 shall have the right to remove any such director occupying such position(s) (other than the CEO Director, who shall remain an Ordinary Director so long as such individual is serving as the chief executive officer of the Company) and to fill any vacancy caused by the death, disability, retirement, resignation or removal of any director occupying such position. If a vacancy is created on the Board at any time by the death, disability, retirement, resignation or removal of any director designated pursuant to Section 2.1, the replacement to fill such vacancy shall be designated in the same manner, in accordance with Section 2.1, as the director whose seat was vacated.

(iii) At each election of the directors of the Board, each Shareholder shall vote at any meeting of members, such number of Shares as may be necessary, or in lieu of any such meeting, shall give such Shareholder’s written consent, as the case may be, with respect to such number of Shares to keep the Board constituted in the manner provided in this Section 2.1 and in addition (a) as may be necessary to cause the election or re-election as members of the Board, and during such period to continue in office, each of the individuals designated pursuant to this Section 2.1 and (b) against any nominees not designated pursuant to this Section 2.1.

2.2 Board Meetings. The Board shall meet at least once every quarter, unless the Board otherwise approves (so long as such approval includes the approval of at least one Series A Director). A quorum for a Board meeting shall consist of three (3) directors, which shall include at least one Series A Director; provided, that if there is a vacancy among the Ordinary Directors (other than the CEO Director), a quorum for a Board meeting may also consist of the CEO Director and one Series A Director. The non-employee members of the Board shall be entitled to reimbursement from the Company for all reasonable out of pocket expenses related to Board meetings.

2.3 Indemnity. The Company shall indemnify the directors to the maximum extent permitted by the law of the jurisdiction in which the Company is organized. The Company shall also provide a customary indemnification agreement which contains indemnity provisions for the Series A Directors, the Investors and their respective limited partners and general partners.

2.4 Boards of Other Group Companies. At the request of the holders of a majority of the Preferred Shares then outstanding, the number of directors on the board of any Group Company (other than the Company) shall be constituted in the same manner as the Board, and the provisions in this Section 2 shall apply mutatis mutandis to the board of each such Group Company. The Parties shall take all steps required to give effect to the first sentence of this Section 2.4.

2.5 Protective Provisions.

(i) Approval by Holders of Preferred Shares. For so long as at least twenty percent (20%) of the Preferred Shares originally issued pursuant to the applicable share purchase agreements remain outstanding, the Company and each other Group Company shall not, and the Company, the Key Holders and the Founder Holdcos (collectively, the “Covenantors”) shall cause each Group Company not to, take any of the actions listed on Section 1(a) of the Exhibit C attached hereto without obtaining the prior consents of parties as set forth therein.

(ii) Approval by Holders of Series D Preferred Shares. For so long as all of the Series D Preferred Shares originally issued to Tencent Mobility Limited (“Tencent”) pursuant to the Share Purchase Agreement remain outstanding, the Company and each other Group Company shall not, and the Covenantors shall cause each Group Company not to, take any of the actions listed on Section 1(b) of the Exhibit C attached hereto without obtaining the prior consents of parties as set forth therein.

2.6 Information and Inspection Rights.

(i) Information. The Company shall, and each Covenantor shall cause the Company to, deliver, as soon as practicable (but in any event within the timeframes specified below), to each Investor holding at least five percent (5%) of the Company’s outstanding Preferred Shares (each, a “Major Investor”) the following documents or reports:

(a) no later than thirty (30) days prior to the beginning of each fiscal year, the consolidated budget, including capital expenditure plan, of the Company (including its subsidiaries) for such fiscal year and, as soon as prepared, any updated budgets prepared by the Company (including without limitation, any updated budget prepared after the second and/or third quarter of such year, as may be requested by a Major Investor);

(b) within ninety (90) days after the end of each fiscal year, the audited consolidated financial statements for such fiscal year, prepared in accordance with the International Financial Reporting Standards or U.S. generally accepted accounting principles, applied on a consistent basis, and audited by an accredited accounting firm of international repute reasonably acceptable to the Major Investors;

(c) within thirty (30) days after the end of each fiscal quarter, the unaudited consolidated quarterly financial statements and key operating metrics of the Company for such quarter, including a comparison of actual results against the budgeted results for such period; and

(d) such other financial and business information and other information relating to the financial condition, business, prospects or corporate affairs of the Company as a Major Investor may reasonably request from time to time.

Notwithstanding anything to the contrary, nothing herein or in the other Transaction Documents shall require the Company to provide the Major Investor with material non-public technical information of the Company.

(ii) Inspection. The Company will afford each Major Investor or its duly designated representatives at their own cost, during normal business hours following reasonable notice, to visit and inspect the relevant Group Company, and to examine the books of account and records of the Group Company, and to discuss the affairs, finances and accounts of the Group Company with the directors, officers, management employees, accountants, legal counsel and investment bankers of such entities.

2.7 Waiver. The Company acknowledges that each Investor and the FF Beneficial Investor will likely have, from time to time, information that may be of interest to the Group Companies (“Information”) regarding a wide variety of matters including, by way of example only, (i) a Preferred Shareholder’s technologies, plans and services, and plans and strategies relating thereto, (ii) current and future investments a Preferred Shareholder has made, may make, may consider or may become aware of with respect to other companies and other technologies, products and services, including, without limitation, technologies, products and services that may be competitive with those of the Group Companies, and (iii) developments with respect to the technologies, products and services, and plans and strategies relating thereto, of other companies, including, without limitation, companies that may be competitive with any Group Company. The Company recognizes that a portion of such Information may be of interest to the Group Companies. Such Information may or may not be known by the Series A Directors. The Company, as a material part of the consideration for entering into this Agreement, agrees that the Series A Directors (and, for the avoidance of doubt, each Preferred Shareholder) shall not have any duty to disclose any Information to the Group Companies, or permit any Group Company to participate in any projects or investments based on any Information, or to otherwise take advantage of any opportunity that may be of interest to any Group Company if it were aware of such Information, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or otherwise that could limit an Investor’s or the FF Beneficial Investor’s ability to pursue opportunities based on such Information or that would require any Preferred Shareholder or any Series A Director to disclose any such Information to any Group Company or offer any opportunity relating thereto to any Group Company, provided that such Information is not presented to, acquired, created or developed by, or otherwise comes into the possession of a Series A Director (or a Preferred Shareholder) (A) solely in his or her capacity as a director of any Group Company or (B) from the Company, Group Companies or any officer, director, employee or any other Affiliate of any Group Company, in each case, acting on behalf of any Group Company. The Covenantors hereby irrevocably agree that each Series A Director is a nominee of the Preferred Shareholder who appoints him or her and that the Series A Director shall be entitled to, and the Preferred Shareholder who nominates him or her can require him or her to, report all matters concerning the Group Companies, including but not limited to, matters discussed at any meeting of the Board, and that the Series A Director may take advice and obtain instructions from his or her nominating Preferred Shareholder. Notwithstanding the foregoing, the Series A Director shall undertake general fiduciary obligations to the Company according to the Companies Law of the Cayman Islands (as amended) or any other applicable laws.

3.	PREEMPTIVE RIGHTS

3.1 Preemptive Right. The Company hereby grants to each Major Investor (each an “Offeree”) a right (the “Preemptive Right”) to purchase up to its pro rata share of any New Securities (as defined below) that the Company may, from time to time after the Initial Closing, propose to sell or issue. For the purposes of the Preemptive Right hereunder, each Offeree’s “pro rata share” shall be determined according to the aggregate number of all Ordinary Shares converted or convertible from the Preferred Shares held by such Offeree immediately prior to the issuance of the New Securities in relation to the aggregate number of all Shares, options and warrants (calculated on a fully-diluted and as converted to Ordinary Shares basis) then outstanding immediately prior to the issuance of the New Securities. For the purpose of the Preemptive Right hereunder, the term “New Securities” shall have the meaning as defined in the Memorandum and Articles but shall exclude any Series D Preferred Shares issued by the Company under the Share Purchase Agreement.

(i) Issuance Notice. In the event the Company proposes to undertake an issuance of New Securities, it shall give each Offeree written notice (an “Issuance Notice”) of such intention, describing (a) the type of New Securities, (b) the identity of the prospective subscriber, and (c) the price and the general terms upon which the Company proposes to issue such New Securities. Each of the Offerees shall have twenty (20) days after its receipt of the Issuance Notice to agree to purchase up to such Offeree’s respective pro rata share of such New Securities for the price and upon the terms specified in the Issuance Notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased.

(ii) If any such Offeree fails to exercise its right to purchase its full pro rata share of the New Securities, the Company shall deliver a written notice (the “Additional Issuance Notice”) promptly after the expiration of the aforementioned twenty (20) day period to each Offeree that elected to purchase its entire pro rata share of the New Securities (an “Exercising Offeree”) to offer such Exercising Offerees the additional right to purchase such unpurchased New Securities by notifying the Company in writing within five (5) days after receipt of the Additional Issuance Notice; provided, however, that if the Exercising Offerees desire to purchase in aggregate more than the number of such unpurchased New Securities, then such unpurchased New Securities will be allocated to the extent necessary among the Exercising Offerees in accordance with their relative pro rata shares based on the number of the unpurchased New Securities such Exercising Offerees have elected to purchase pursuant to this Section 3.1.

3.2 Sales by the Company. For a period of ninety (90) days following the expiration of the twenty (20) day period provided in Section 3.1(i) and the five (5) day period provided in Section 3.1(ii), if applicable, the Company may sell any New Securities with respect to which the Offerees’ rights under this Section 3 were not exercised, to the purchasers identified in the Issuance Notice and at a price and upon terms not more favorable to the purchasers thereof than specified in the Issuance Notice. In the event the Company has not entered into an agreement for the sale of such New Securities within such ninety (90) day period, the Company shall not and the other Covenantors shall cause the Company not to thereafter issue or sell any New Securities, without first again offering such securities to the Offerees in the manner provided in this Section 3.

4.	SHARE TRANSFER RIGHTS AND RESTRICTIONS

4.1 Restrictions on Ordinary Shares Owned by Key Holders. Any proposed transfer of any interest in any Shares now or hereafter owned or held by a Key Holder, either directly or indirectly (in each case, a “Transfer”) shall be made in compliance with the terms of this Section 4.

4.2 Right of First Refusal and Right of Co-Sale. Each Investor shall have the right of first refusal and the right of co-sale with respect to Transfers by a Key Holder or a Founder Holdco as set forth on Exhibit D.

4.3 Prohibited Transfers Void. Any transfer of Shares of the Company not made in compliance with this Agreement shall be null and void as against the Company, shall not be recorded on the books of the Company and shall not be recognized by the Company.

4.4 Transfer Defined. For the purpose of this Agreement, the term “transfer” shall include any direct or indirect transfer, sale, assignment or pledge, and its verb form and the terms of “transferor” and “transferee” shall have the meaning correlative to the foregoing. In the case that any Ordinary Share is held by its ultimate beneficial owner through one or more levels of holding companies, any transfer, repurchase, or new issuance of the shares of such holding companies or similar transactions that have the effect of changing the beneficial ownership of such Ordinary Share shall be deemed an indirect transfer of such Ordinary Shares. The Parties agree that the restrictions on the transfer of the Ordinary Shares contained in this Agreement shall apply to such indirect transfer and shall not be circumvented by means of any indirect transfer of the Ordinary Shares.

5.	ADDITIONAL AGREEMENTS

5.1 Registration Rights. The Company hereby grants to the Shareholders such registration rights as set forth on Exhibit E.

5.2 Drag-Along Rights. Each Party hereby acknowledges and agrees to the drag-along rights as set forth on Exhibit F.

5.3 Tax Matters. The Group Companies shall comply with the applicable tax laws and comply with all record-keeping, reporting, and other requirements necessary for an Investor’s or the FF Beneficial Investor’s compliance with any applicable tax laws. The Group Companies shall use their respective commercially reasonable effort to avoid adverse tax status (such as “PRC resident enterprise” for any Group Company organized outside the PRC under the PRC tax laws, or “controlled foreign corporation”, “passive foreign investment company” or “United States real property holding corporation” under the U.S. tax laws). The Company shall also provide each Investor and the FF Beneficial Investor with any information reasonably requested by such Investor or the FF Beneficial Investor to enable them to comply with any applicable U.S. tax laws and to make the appropriate tax determination or election (including the determination of whether the Company is a “controlled foreign corporation,” “passive foreign investment company” or “United States real property holding corporation” under the US tax laws). For the avoidance of doubt, all out-of-pocket expenses incurred by any Group Company resulting from complying with the forgoing shall be borne by the Company.

5.4 Share Grants. Unless otherwise approved by the Board (including the affirmative vote of at least one Series A Director), all future employees of the Company who shall purchase, or receive options to purchase, Ordinary Shares following the Signing Date shall be required to execute share purchase or option agreements providing for (a) vesting of shares over a four (4) year period with the first fifty percent (50%) of such shares vesting following two (2) years of continued employment or services, and the remaining shares vesting in equal annual installments over the following two (2) years thereafter and (b) a one hundred eighty (180) day lockup period (plus an additional period of up to eighteen (18) days) in connection with the Company’s initial public offering. The Company shall retain a right of first refusal on transfers until the Company’s initial public offering and the right to repurchase unvested shares at cost.

5.5 Memorandum and Articles. In the event of any conflict or inconsistency between any of the terms of this Agreement and any of the terms of the Memorandum and Articles, the terms of this Agreement shall prevail in all respects, the Parties shall give full effect to and act in accordance with the provisions of this Agreement over the provisions of the Memorandum and Articles, and the Parties hereto shall exercise all voting and other rights and powers (including to procure any required alteration to the Memorandum and Articles to resolve such conflict or inconsistency) to make the provisions of this Agreement effective.

5.6 Commitment; Forfeiture. Each Key Holder agrees that, except as otherwise approved from time to time by the Board (including the affirmative consent of at least one Series A Director) and a majority of the then-outstanding Preferred Shares, (i) such Key Holder shall refrain from acting in other positions, engage in any other job, or receive financial benefit or advantage from third parties in connection with provision of services during the period of time between the date hereof and such Key Holder’s resignation or termination from the Group Companies, (ii) during such Key Holder’s employment, such Key Holder shall devote all of his or her work effort exclusively towards the fulfillment of his or her service obligations with the Group Companies and use his or her best efforts to promote the interest and business of the Group Companies and (iii) during such Key Holder’s employment and a two (2) year period following the termination of his or her employment, such Key Holder shall not, directly or indirectly, invest in , work for or provide service to a business that is competitive with a material part of the business conducted by any Group Company or the Business, provided that, a Key Holder may own no more than five percent (5%) of the outstanding equity securities of a business solely as a passive investor without holding any board or management positions (including without limitation directors, observers and officers) in such business or being involved in the operation of such business, provided further that, in any event that a Key Holder inadvertently breaches the foregoing sentence by owning more than five percent (5%) of the outstanding equity securities of the relevant business, such Key Holder may have sixty (60) days to cure such breach by reducing the shareholding percentage to five percent (5%) or less within such sixty (60)-day period. Notwithstanding the foregoing, this Section 5.6 shall not apply to Yongming Wu.

5.7 Proprietary Information and Inventions Agreements. Each Group Company shall require all employees and consultants with access to confidential information to execute and deliver an Inventions Agreement (as defined in the Share Purchase Agreement), unless otherwise determined by the Board, including at least one Series A Director.

5.8 FCPA. Each Group Company represents that it shall not (and shall not permit any of its subsidiaries or affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents to) promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, to any third party, including any Non-U.S. Official (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”)), in each case, in violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law. Each Group Company further represents that it shall (and shall cause each of its subsidiaries and affiliates to) cease all of its or their respective activities, as well as remediate any actions taken by such Group Company, its subsidiaries or affiliates, or any of their respective directors, officers, managers, employees, independent contractors, representatives or agents in violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law. Each Group Company further represents that it shall (and shall cause each of its subsidiaries and affiliates to) maintain systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law. Upon request, each Group Company agrees to provide responsive information and/or certifications concerning its compliance with applicable anti-corruption laws. Each Group Company shall promptly notify each Investor if such Group Company becomes aware of any allegation, voluntary disclosure, investigation, prosecution or other enforcement action related to the FCPA or any other anti-corruption law. Each Group Company shall, and shall cause any direct or indirect subsidiary or entity controlled by it, whether now in existence or formed in the future, to comply with the FCPA. Each Group Company shall use its best efforts to cause any direct or indirect subsidiary, whether now in existence or formed in the future, to comply in all material respects with all applicable laws.

6.	TERMINATION

This Agreement and all rights and covenants contained herein, including but not limited to those contained in Sections 2, 3, 4 and 5 (with the exception of the registration rights granted under Section 5.1, which shall survive the closing of a Qualified IPO in accordance with their terms), shall terminate on the closing of (a) a Qualified IPO or (b) a Deemed Liquidation Event after which the Investors cease to be Shareholders of the Company.

7.	MISCELLANEOUS

7.1 Confidentiality. From the Signing Date, each Party shall, and shall cause any Person who is controlled by such Party to, keep confidential the terms, conditions, and existence of this Agreement, the other transaction documents and any related documentation, the identities of any of the Parties, and other information of a non-public nature received from any other Party or prepared by such Party exclusively in connection herewith or therewith (collectively, the “Confidential Information”) except as the Company, the FF Beneficial Investor and the Investors shall mutually agree otherwise; provided, that any Party hereto may disclose Confidential Information or permit the disclosure of Confidential Information (a) to the extent required by applicable laws or the rules of any stock exchange or requested by any Government Official in his or her official capacity; provided that such Party shall, where practicable and to the extent permitted by applicable laws, provide the other Parties with prompt written notice of that fact and use all reasonable efforts to seek (with the cooperation and reasonable efforts of the other Parties) a protective order, confidential treatment or other appropriate remedy; and in such event, such Party shall furnish only that portion of the information which is legally required or requested to be disclosed and shall exercise reasonable efforts to keep such information confidential to the extent reasonably requested by any such other Parties, (b) to its officers, directors, employees, and professional advisors on a need-to-know basis for the performance of its obligations in connection herewith so long as such Party advises each Person to whom any Confidential Information is so disclosed as to the confidential nature thereof, (c) in the case of each Investor and the FF Beneficial Investor, to its auditors, counsel, directors, officers, employees, shareholders, partners, other Investors, the FF Beneficial Investor or (in the case of the FF Investor or the FF Beneficial Investor) to each other Future Fund Disclosure Party, (d) to its current or bona fide prospective investor, investment bankers and any Person otherwise providing substantial debt or equity financing to such Party so long as the Party advises each Person to whom any Confidential Information is so disclosed as to the confidential nature thereof, and (e) in the case of Tencent, to its Affiliates and officers, directors, employees, and professional advisors of its Affiliates on a need-to-know basis for the performance of its obligations in connection herewith so long as Tencent advises each Person to whom any Confidential Information is so disclosed as to the confidential nature thereof; provided that in the cases of clauses (b), (c), (d) and (e), such disclosing Party shall be responsible for any disclosure or misuse of Confidential Information by the Person receiving such information from the disclosing Party. For the avoidance of doubt, Confidential Information does not include information that (i) was already in the possession of the receiving Party before such disclosure by the disclosing Party, (ii) is or becomes available to the public other than as a result of disclosure by the receiving Party in violation of this Section 7.1, or (iii) is or becomes available to the receiving Party from a third party who has no confidentiality obligations to the disclosing Party. Each Party shall not make any announcement regarding the consummation of the transaction contemplated by this Agreement, other transaction documents and any related documentation in a press release, conference, advertisement, announcement, professional or trade publication, marketing materials or otherwise to the general public without the prior written consent of the Parties identified in such announcement and Tencent.

7.2 Governing Law. This Agreement shall be governed by and construed under the laws of Hong Kong, without regard to principles of conflict of laws thereunder.

7.3 Dispute Resolution.

(i) Any dispute, controversy or claim arising out of, in connection with or relating to this Agreement, including the existence, interpretation, validity, invalidity, performance, breach or termination thereof, or any dispute regarding non-contractual obligations arising out of or relating to it (each, a “Dispute”) shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (the “HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Arbitration Notice is submitted.

(ii) The seat of the arbitration shall be Hong Kong. There shall be three (3) arbitrators. One (1) arbitrator shall be designated by the claimant or group of claimants, and one (1) arbitrator shall be designated by the respondent or group of respondents. Such arbitrators shall designate the third arbitrator. Where the group of claimants or group of respondents consists of Investors, the arbitrator designated by such group of claimants or group of respondents shall be selected by a majority vote of the Preferred Shares then-held by such Investors. Each arbitrator shall be qualified to practice law in Hong Kong. The arbitration shall be conducted in the English language.

(iii) Each party to the arbitration shall cooperate with each other party in making full disclosure of and providing complete access to all information and documents requested by such other party in connection with such arbitration proceedings, subject only to any doctrine of legal privilege or any confidentiality obligations binding on such party.

(iv) The costs of arbitration (including legal fees and expenses, tribunal fees, and administrative fees) shall be borne by the losing party, unless otherwise determined by the arbitral tribunal.

(v) During the course of the arbitral tribunal’s adjudication of the Dispute, the parties shall continue to fulfill their respective obligations and shall be entitled to exercise their rights under this Agreement except with respect to the part in Dispute and under adjudication.

(vi) The award of the arbitral tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.

(vii) Any party to the Dispute shall be entitled to seek preliminary injunctive relief from any court of competent jurisdiction pending the conclusion of the arbitration.

7.4 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by an internationally recognized overnight courier service, by electronic mail, facsimile or registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the addresses specified in the Part IV of the Exhibit A (with an electronic copy provided to the corresponding email address listed in the Part IV of the Exhibit A) (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.4).

7.5 Successors and Assigns. Except as otherwise provided herein, 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 whose rights or obligations hereunder are affected by such terms and conditions. This Agreement, and the rights and obligations hereunder, shall not be assigned, except that (i) an Investor other than FF Investor may assign its rights and obligations hereunder to any third parties with the written consent of the Company, and (ii) the FF Investor may assign its rights and obligations hereunder to any third parties with the written consents of the FF Beneficial Investor and the Company. Notwithstanding the foregoing, (a) each Investor may assign its rights and obligations to an Affiliate of it without consent of the Company or any other parties to this Agreement; and (b) the FF Investor and the FF Beneficial Investor may transfer or assign any or all of their respective rights or obligations under this Agreement to any FF Permitted Transferee and otherwise with the consent of the Company.

7.6 Severability. In case any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If, however, any provision of this Agreement shall be invalid, illegal, or unenforceable under any such applicable laws in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such law.

7.7 Waiver and Amendment. Any Party may (A) extend the time for the performance of any of the obligations or other acts of another Party, (B) waive any inaccuracies in the representations and warranties of another Party contained herein or in any document delivered by another Party pursuant hereto or (C) waive compliance with any of the agreements of another Party or conditions to such Party’s obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party to assert any of its rights hereunder shall not constitute a waiver of any of such rights. This Agreement may not be amended or modified, and no provision hereof may be waived, except by an instrument in writing signed by the Company, the Key Holders holding a majority of the outstanding Ordinary Shares held by Key Holders then providing services to any Group Company as employees or consultants, and the Investors holding a majority of the outstanding Preferred Shares then held by the Investors, which instrument, to the extent applicable, is approved in accordance with Article 8.4(B)(2)(a) of the Memorandum and Articles and the corresponding provision in Exhibit C to this Agreement; provided that any extension, waiver, amendment or modification of this Agreement that adversely changes the rights or obligations of (i) an Investor in a manner different than the other Investors shall also require the written consent of such Investor (or the FF Beneficial Investor in the case where FF Investor’s consent is required under this subsection 7.7(i)); (ii) the Series D Preferred Shares in a manner different than the other series of Preferred Shares shall also require the written consent of the Preferred Shareholders holding a majority of the outstanding Series D Preferred Shares (it being understood that the authorization or issuance of any future security pari passu with the Series D Preferred Shares (which (X) in no event is deemed as Series D Preferred Shares (or any sub class or series of the Series D Preferred Shares); and (Y) in no event vote together with the Series D Preferred Shares as a single class or series (except for voting together with all Preferred Shares or all Shares) or senior to the Series D Preferred Shares will not be an adverse amendment); and (iii) a Key Holder in a manner different than the other Key Holders shall also require the written consent of such Key Holder.

7.8 Interpretation. For all purposes of this Agreement, except as otherwise expressly provided, (a) the defined terms shall have the meanings assigned to them in its definition and include the plural as well as the singular, (b) all references in this Agreement to designated “Sections” and other subdivisions are to the designated Sections and other subdivisions of the body of this Agreement unless explicitly stated otherwise, (c) pronouns of either gender or neuter shall include, as appropriate, the other pronoun forms, (d) the words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision, (e) the word “knowledge” means, with respect to a person’s “knowledge”, the actual knowledge of such person and that knowledge which should have been acquired by it after making due inquiry, (f) all references in this Agreement to designated exhibits are to the exhibits attached to this Agreement unless explicitly stated otherwise, (g) the titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement, (h) any reference in this Agreement to any “Party” or any other Person shall be construed so as to include its successors in title, permitted assigns and permitted transferees, (i) any reference in this Agreement to any agreement or instrument is a reference to that agreement or instrument as amended or novated, (j) this Agreement is jointly prepared by the Parties and should not be interpreted against any Party by reason of authorship, and (k) the term “including” and its variants shall be non-exclusive.

7.9 Additional Key Holder. Notwithstanding anything to the contrary contained herein, if the Company issues additional Ordinary Shares of the Company after the date hereof, any holder of such new Ordinary Shares that represent no less than 1% of the Company’s then total outstanding share capital on a fully-diluted basis shall, and the Covenantors shall procure such holder to, become a party to this Agreement as a “Key Holder” by executing and delivering an additional counterpart signature page to this Agreement. Such holder shall thereafter be deemed a “Key Holder” for all purposes hereunder, and no action or consent by the Parties shall be required for such joinder to this Agreement.

7.10 Additional Investor. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Series D Preferred Shares after the date hereof, whether pursuant to the Purchase Agreement or otherwise, any purchaser of such Series D Preferred Shares may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor.

7.11 Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof.

7.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

7.13 The FF Investor Limitation of Liability. The FF Investor enters into and is liable under (a) this Agreement, (b) any other document or agreement which the FF Investor may be required to provide under this Agreement and (c) any document or agreement executed by the Company or any other person as agent or attorney of the FF Investor under this Agreement only in its capacity as custodian for the FF Beneficial Investor, and to the extent that it is actually indemnified by the FF Beneficial Investor. To the extent this Section 7.13 operates to reduce the amounts for which the FF Investor would otherwise be liable to any person, the FF Beneficial Investor will pay or procure the payment of such amounts to such person.

(The remainder of this page has been left intentionally blank)