SHARE RESTRICTION AGREEMENT(中外合资公司股东限制协议)

SHARE RESTRICTION AGREEMENTTHIS SHARE RESTRICTION AGREEMENT (this “Agreement”) is entered intoon (the “Effective Date”), by and among ,a organized under the laws of [Cayman Islands] (the “Company”), each of the individuals and their respective holding companies through which such individual holds certain ordinary shares of the Company as listed on Schedule I attached hereto (each such individual, a “Principal” and collectively, the “Principals”, each such holding company, a “Holding Company” and collectively, the “Holding Companies” and with the Principals, the “Restricted Persons”), and the Persons listed on Schedule II attached hereto, together with its successor and permitted assign and transferee (the “Investor”). Each of the parties to this Agreement is referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized terms used herein without definition shall have the meanings set forth in the Shareholders Agreement (as defined below).RECITALSA. The Investor has agreed to purchase from the Company, and the Company has agreed to sell to the Investor, certain Series A Preferred Shares of the Company on the terms and conditions set forth in the Series A Preferred Share Purchase Agreement dated by and among the Company, the Principals, the Holding Companies, the Investor, and the other parties thereto (the “Purchase Agreement”).B. The Purchase Agreement provides that it is a condition precedent to the consummation of the transactions contemplated under the Purchase Agreement that the Parties enter into this Agreement.C. 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.WITNESSETHNOW, 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 intending to be legally bound hereto hereby agree as follows:1. Definitions.1.1 The following terms shall have the meanings ascribed to them below:“Affiliate” means, with respect to a Person, any other Person th at, directly or indirectly, Controls, is Controlled by or is under common Control with such Person. In the case of any Investor, the term “Affiliate” also includes (v) any shareholder of such Investor, (w) any of such shareholder’s or such Investor’s gene ral partners or limited partners, (x) the fund manager managing or advising such shareholder or such Investor (and generalpartners, limited partners and officers thereof) and other funds managed or advised by such fund manager, (y) trusts Controlled by or for the benefit of any such Person referred to in (v), (w) or (x), and (z) any fund or holding company formed for investment purposes that is promoted, sponsored, managed, advised or serviced by such Investor or any of its shareholder or its shareholder’s general partner or fund manager.“Business Day” means any day that is not a Saturday, Sunday, legal holiday or other day on which commercial banks are required or authorized by law to be closed in the Cayman Islands, the PRC or Hong Kong.“Board of Directors” means the board of directors of the Company.“Cause” means, with respect to a Principal, the determination by a majority of the non-Principal directors on the Board of Directors of the Company that the Principal: (a) has committed an act of theft, forgery, fraud, dishonesty, misappropriation or embezzlement, has committed an act which brings the Principal or any Group Company into public disrepute, contempt, scandal or ridicule, has committed a knowing violation of any order, rule or regulation of any court or governmental or regulatory body or authority, or has violated any duty of loyalty or other fiduciary duty owed to the Group; (b) has been indicted or convicted of, or pled guilty or nolo contendere to, any felony (other than a moving vehicle violation); (c) has engaged in the unlawful use or possession of illegal drugs; (d) has breached in any material respect this Agreement or any other agreement among such Principal and the Company (and certain other parties thereto, if any, including any employment agreement, confidentiality and invention assignment agreement and non-compete agreement), which breach is not cured (if curable, and if other than a funding obligation) within [30] days after receipt of written notice from the Company to such Principal specifying such failure; (e) has materially breached or materially failed to comply with the good-faith and reasonable directions of the Board of Directors of the Company; or (f) has failed to devote all of his/her full professional time, attention, energies and abilities to his/her employment for the Group Companies. “Control” of a given Person means the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided, that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the board of directors of such Person. The terms “Controlled” and “Controlling” have meanings correlative to the foregoing.“Equity Securities” means with respect to any Person that is a legal entity, any and all shares of capital stock, membership interests, units, profits interests, ownership interests, equity interests, registered capital, and other equity securities of such Person, and any right, warrant, option, call, commitment, conversion privilege, preemptive right or other right to acquire any of the foregoing, or security convertible into, exchangeable or exercisable for any of the foregoing.“Group Company” has the meani ng given to such term in the Memorandum and Articles. “Hong Kong” means the Hong Kong Special Administrative Region.“Leave/Disability” means, with respect to a Principal, that such Principal has been unable to perform his or her duties due to serious illness, disability, or mandatory leave from office as required by applicable law (including but not limited to statutory military services) for three (3) consecutive months or six (6) months in any twelve (12) month period, in the case of illness or disability, or up to a consecutive period of two (2) years, in the case of mandatory leave as required by applicable law.“Majority Series A Preferred Holders” means the holders of [50% or more] of the voting power of the then outstanding Series A Preferred Shares and/or Ordinary Shares converted therefrom (voting together as a single class and calculated on an as-converted basis).“Memorandum and Articles” means the Amended and Restated Memorandum of Association of the Company and the Amended and Restated Articles of Association of the Company, as each may be amended and/or restated from time to time.“Ordinary Shares” means the ordinary shares of the Company, par value US$ per share.“Person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity.“Qualified IPO” means a firm commitment underwritten public offering of the Ordinary Shares of the Company on the New York Stock Exchange, NASDAQ, Hong Kong Stock Exchange, or other internationally accepted stock exchange agreed by the Investor, (i) where the per share pre-offering valuation of the Company is at least [_____] times of the per share price of the Series A Preferred Shares (as adjusted for any share dividends, combinations, reclassifications or splits with respect to such shares and the like) and (ii) shares issued to the public in the offering by the Company shall not be less than [25]% of all shares of the Company, on a fully-diluted basis, immediately following the public offering.“Preferred Shares” means, collectively, the Series A Preferred Shares of the Company.“Restricted Shares” means, with respect to a Principal and such Principal’s Holding Companies, all of the Shar es held by such Principal and such Principal’s Holding Companies as of the Start Date and any new, substituted or additional Shares, securities or other property described in Section 3.5 of this Agreement received by any of them after the Start Date, which Shares, securities and other property shall remain Restricted Shares until they are vested and released from the Repurchase Right pursuant to this Agreement.“Series A Preferred Shares” means the Series A Preferred Shares of the Company, par value US$ per share, with the rights and privileges as set forth in the Memorandum and Articles.“Shareholders Agreement” means the Shareholders Agreement, as defined in the Purchase Agreement and as amended from time to time.“Shares” means the Ordinary Shares and the Preferred Shares.“Start Date” means, with respect to each Principal, [the date of the Closing (as defined in the Purchase Agreement) or the date of signing formal employment contract with the company, whichever is later].“Vested Shares” m eans Shares that were Restricted Shares but that have subsequently become vested and released from the Repurchase Right pursuant to this Agreement.1.2 Other Defined Terms. The following terms shall have the meanings defined for such1.3 Interpretation. For all purposes of this Agreement, except as otherwise expressly herein provided, (i) the terms defined in this Section 1 shall have the meanings assigned to them in this Section 1 and include the plural as well as the singular, (ii) all accounting terms not otherwise defined herein have the meanings assigned under the Accounting Standards (as defined in the Shareholders Agreement), (iii) all references in this Agreement to designate d “Sections” and other subdivisions are to the designated Sections and other subdivisions of the body of this Agreement, (iv) pronouns of either gender or neuter shall include, as appropriate, the other pronoun forms, (v) 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, (vi) all references in this Agreement to designated Schedules, Exhibits and Appendices are to the Schedules, Exhibits and Appendices attached to this Agreement, (vii) references to this Agreement, and any other document shall be construed as references to such document as the same may be amended, supplemented or novated from time to time, (viii) the term “or” is not exclusi ve, (ix) the term “including” will be deemed to be followed by “, but not limited to,” (x) the terms “shall,” “will,” and “agrees” are mandatory, and the term “may” is permissive, (xi) the phrase “directly or indirectly” means directly, or indirectly throu gh one or more intermediate Persons or through contractual or other arrangements, and “direct or indirect” has the correlative meaning, (xii) the term “voting power” refers to the number of votes attributable to the Shares (on an as-converted basis) in accordance with the terms of the Memorandum and Articles, (xiii) the headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement, (xiv) references to laws include any such law modifying, re enacting, extending or made pursuant to the same or which is modified, re enacted, or extended by the same or pursuant to which the same is made, and (xv) all references to dollars or to “US$” are to currency of the United States of America and all references to RMB are to currency of the PRC (and each shall be deemed to include reference to the equivalent amount in other currencies).2. Prohibition on Transfer of Shares.2.1 Prohibition on Transfer. No Restricted Person shall directly or indirectly sell, assign, transfer, pledge, hypothecate, or otherwise encumber or dispose of in any way (“Transfer”) all or any part of any interest in any Restricted Shares. A Restricted Person shall not transfer any or all of Restricted Shares held by him or her without the prior written consent of the Investor and any Transfer of Vested Shares shall be subject to the compliance with the terms of this Agreement, applicable Law, and the Other Restriction Agreements. In addition to the foregoing, no Restricted Person shall directly or indirectly Transfer any Shares unless the transferee of the Shares shall have executed suchdocuments as the Company or the Investor may reasonably require to ensure that the rights of the Company and the Investor under this Agreement and Other Restriction Agreements are adequately protected with respect to such Shares, including, without limitation, the transferee’s agreement to be bound by all of the terms and conditions of this Agreement, as if he, she or it were the original holder of such Shares. Any Transfer or purported Transfer of Restricted Shares or Vested Shares by a Restricted Person not made in conformance with this Agreement and Other Restriction Agreements shall be null and void, shall not be recorded on the register of members of the Company and shall not be recognized by the Company.2.2 Escrow. Upon the Effective Date, each of the Restricted Persons shall deposit the certificates representing all of the Restricted Shares, together with a transfer form executed in blank by the record owner of such Restricted Shares in the form attached hereto as Exhibit A (the “Transfer Form”), in escrow with the Company to be held and released only in accordance with the provisions of this Agreement and Other Restriction Agreements. Immediately upon receipt by any Restricted Person of any new, substituted or additional securities or other property described in Section3.5, such Restricted Person shall immediately deliver to the Company, to be similarly held in escrow, the certificates representing all of such securities or other property. All Shares held in escrow hereunder, together with any other securities or property held in escrow hereunder, shall be released to the record owner of such Shares when such Shares are no longer subject to the Repurchase Right (as defined below), or when such Shares are properly transferred pursuant to the Repurchase Right, or when otherwise agreed by the Majority Series A Preferred Holders in writing. Each of the Restricted Persons hereby acknowledges that the escrow hereunder is a material inducement to the Investor’s investment in the Company pursuant to the Purchase Agreement and that such escrow is coupled with an interest and is accordingly irrevocable.2.3 Legend. Each existing or replacement certificate for Shares subject to the Repurchase Right shall bear the following legend:“THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THESE SECURITIES IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN SHARE RESTRICTION AGREEMENT (AS AMENDED FROM TIME TO TIME) BY AND AMONG THE SHAREHOLDER, THE COMPANY AND CERTAIN OTHER PARTIES THERETO. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.”The Company may annotate its register of members with an appropriate, corresponding legend. At such time as Shares are no longer subject to the Repurchase Right, the Company shall, at the request of the holder of such Shares, issue replacement certificates for such Shares without such legend.2.4 No Indirect Transfers. Each Restricted Person agrees not to circumvent or otherwise avoid the transfer restrictions or intent set forth in this Agreement and Other Restriction Agreements whether by holding the Equity Securities of the Company indirectly through another Person (including a Holding Company) or by causing or effecting, directly or indirectly, the Transfer or issuance of any Equity Securities by any such Person (including a Holding Company), or otherwise. Each Principal and each Holding Company furthermore agrees that, so long as such Principal or the Holding Company isbound by this Agreement, the Transfer, sale or issuance of any Equity Securities of any Holding Company of such Principal in violation of this Agreement or Other Restriction Agreements without the prior written consent of the Majority Series A Preferred Holders shall be prohibited, and each such Principal and such Holding Company agrees not to make, cause or permit any Transfer, sale or issuance of any Equity Securities of such Holding Company in violation of this Agreement Other Restriction Agreements without the prior written consent of the Majority Series A Preferred Holders. Any purported Transfer, sale or issuance of any Equity Securities of any Holding Company in contravention of this Agreement or Other Restriction Agreements shall be void and ineffective for any and all purposes and shall not confer on any transferee or purported transferee any rights whatsoever, and no Party (including without limitation, Principal or Holding Company) shall recognize any such Transfer, sale or issuance.2.5 Performance. Each Principal irrevocably agrees to cause and guarantee the performance by such Principal’s Holding Companies of all of its respective covenants and obligations under this Agreement.2.6 Cumulative Restrictions. For purposes of clarity, the restrictions on transfer set forth in this Agreement on a Party are cumulative with, and in addition to, the restrictions set forth in each other agreement imposing restrictions on transfer by such Person of Equity Se curities of the Company (collectively, the “Other Restriction Agreements”), including the Shareholders Agreement and Memorandum and Articles.2.7 Exempt Transaction. Regardless of anything else contained herein, this Agreement shall not apply with respect to a transfer made pursuant to Section [12] (Drag-Along Rights) of the Shareholders Agreement or Article [121] (Drag-Along Rights) of the Memorandum and Articles.3. Repurchase Right.3.1 Repurchase Right.(a) In the event of (i) the voluntary termination by a Principal of his employment with any Group Company, (ii) the termination by the Company of such Principal’s employment with any Group Company, or (iii) the termination by the Company of such Principal’s employment with any Group Company fo r Leave/Disability (each, a “Repurchase Event”), then, in each such event, subject to the other subsections of this Section 3 below, the Company, the other Principal other than such Principal, and the Investor (the “Repurchase Right Holder”) shall have the right to repurchase (the “Repurchase Right”) all Restricted Shares held by such Restricted Person (the “Repurchasable Shares”), at the lower of (1) fair market value or (2) the cost of such shares when acquired by such Restricted Person. The Company shall be entitled to exercise the Repurchase Right prior and in preference to the other Principals and/or Holding Companies and the Investor, and each other Principal and/or Holding Company shall be entitled to exercise the Repurchase Right prior and in preference to the Investor, in accordance with Section 3.3 below.(b) Notwithstanding anything to the contrary in this Section 3.1, in the event of (i) the termination by the Company of such Principal’s employment with any Group Company for Cause, or (ii) such Principal participates or joins any business that shall compete withany Group Company, each Repurchase Right Holder shall be entitled to repurchase the Restricted Shares held by such Restricted Person at par value.3.2 Vesting. With respect to each Principal:(a) Vesting Schedule. Unless otherwise approved in writing by the Majority Series A Preferred Holders , subject to Sections 3.2(b) and 3.2(c) below, as long as such Principal is continuously an employee of a Group Company, the Restricted Shares held by such Principal and such Principal’s Holding Companies shall vest and be released from the Repurchase Right according to the following schedule: [twenty five] percent ([25] %) of such Restricted Shares shall be released from the Repurchase Right and shall therefore become Vested Shares and shall no longer be deemed Restricted Shares and on each of the first, second, third and fourth anniversaries of the Start Date.(b) Accelerated Vesting Upon Qualified Public Offering or Change ofControl. Notwithstanding anything to the contrary contained herein, all then unvested Restricted Shares of such Principal and such Principal’s Holding Companies shall be released from the Repurchase Right and shall therefore become Vested Shares and shall no longer be deemed Restricted Shares upon the earlier to occur of: (i) a Qualified IPO (as defined in the Memorandum and Articles), and (ii) the sale of all or substantially all of the assets of the Company or the consolidation, merger or other business combination of the Company with or into any other business entity duly approved by the Company in accordance with the Shareholders Agreement (including the Drag-Along Sale as defined in the Memorandum and Articles), pursuant to which the shareholders of the Company immediately prior to such consolidation, merger or other business combination hold less than a majority of the voting power of the surviving or resulting entity (collectively, the “Change of Control Events” and each a “Change of Control Event”) in any case only i f the surviving or resulting entity does not assume the obligations of the Company hereunder. For purposes of clarity, the Company may assign its rights and obligations hereunder to the surviving or resulting entity in a Change of Control Event.(c) Deferred Vesting Upon Leave or Disability. The vesting schedule of the Restricted Shares of such Principal and such Principal’s Holding Companies during the period of any Leave/Disability of such Principal shall be suspended and deferred until the date on which such Principal returns to office, if at all.3.3 Mechanism of Repurchase.(a) Within ninety (90) days following any Repurchase Event (the “Repurchase Period”), the Repurchase Right Holders may exercise (and shall exercise at the request of the Majority Series A Preferred Holders) the Repurchase Right by delivering written notice to the relevant Restricted Person in accordance with the orders provided in this Section 3.3. The notice shall indicate the number of Restricted Shares to be repurchased and the date on which the repurchase is to be effected, such date to be not later than the last day of the Repurchase Period.(b) First, the Company shall be entitled to exercise its Repurchase Right to repurchase up to 100% of the Repurchasable Shares, by notifying such relevant Restricted Person in writing, within the first thirty (30) days of the Repurchase Period.(c) Second, if the Company fails to exercise its Repurchase Right to purchase 100% of the Restricted Shares held by the relevant Restricted Person within the first thirty (30)days of the Repurchase Period, the other Principal other than the related Restricted Person shall be entitled to exercise its Repurchase Right to repurchase the Repurchasable Shares not repurchased by the Company, by notifying such relevant Restricted Person in writing, within the second thirty (30) days of the Repurchase Period.(d) If the other Principal other than the related Restricted Person fails to exercise its Repurchase Right to purchase the Repurchasable Shares not repurchased by the Company, the Investor shall be entitled to exercise its Repurchase Right to repurchase the remaining Repurchasable Shares, by notifying such relevant Restricted Person in writing, within the last thirty (30) days of the Repurchase Period.(e) The Restricted Persons and the Company shall take all necessary actions to enable the Repurchase Right Holder to repurchase the Restricted Shares subject to the Repurchase Right. Upon delivery of such notice and so long as the Repurchase Right Holder makes available payment of the repurchase price as provided herein, the repurchase shall be deemed completed, the Restricted Shares shall be deemed repurchased, without further actions by any party, and the Restricted Person shall no longer be considered the owner of those Restricted Shares repurchased for record or any other purposes and will be entitled thereafter only to receipt of the applicable repurchase price. To effect the foregoing, the Repurchase Right Holder is authorized and empowered to date, execute, deliver and otherwise use the Transfer Form to effect the Repurchase Right.3.4 Additional or Substituted Securities. In the event of the declaration of a share dividend, the declaration of an extraordinary dividend payable in a form other than shares, a spin-off, a share split, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company's outstanding securities without receipt of consideration, the Repurchase Right under this Section 3 shall apply mutatis mutandis to any new, substituted or additional securities or other property (including money paid other than as an ordinary cash dividend) that by reason of such transaction are distributed with respect to any Shares then subject to the Repurchase Right, to the same extent as such Shares. All such additional and substituted securities or other property shall be deposited in escrow pursuant to Section 2.2.4. Stop-Transfer Notices.In order to ensure compliance with the terms of this Agreement, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and, if the Company acts as transfer agent for its own securities, it may make appropriate notations to the same effect in its own records.5. Miscellaneous.5.1 Further Assurances. Upon the terms and subject to the conditions herein, each of the Parties hereto agrees to use its reasonable best efforts to take or cause to be taken all action, to do or cause to be done, to execute such further instruments, and to assist and cooperate with the other Parties hereto in doing, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.5.2 Assignments and Transfers; Third Party Beneficiaries. Except as otherwise provided herein, this Agreement and the rights and obligations of the Parties hereunder shall inureto the benefit of, and be binding upon, their respective successors, assigns and legal representatives, but shall not otherwise be for the benefit of any third party. The rights of the Investor hereunder are assignable and the obligations of the Investor hereunder are transferrable, in each case to its Affiliate or to a third party in connection with the transfer of Equity Securities of the Company held by the Investor to such third party but only to the extent of such transfer. This Agreement and the rights and obligations of each other Party hereunder shall not otherwise be assigned or transferred without the mutual written consent of the other Parties, except as expressly provided herein.5.3 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.5.4 Dispute Resolution.(a) Any dispute, controversy or, claim or difference of any kind whatsoever arising out of, relating to or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof, the validity, scope and enforceability of this arbitration provision and any dispute regarding no-contractual obligations arising out of or relating to it (the “Dispute”) shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the HKIAC Administered Arbitration Rules in forceat the time of the commencement of the arbitration. However, if such rules are in conflict with the provisions of this Section 5.4, including the provisions concerning the appointment of arbitrators, the provisions of this Section 5.4 shall prevail..(b) The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong.(c) The number of arbitrators shall be ( ]). The claimants in the Dispute shall nominate ( )arbitrator, the respondents in the Dispute shall nominate ( ) arbitrator, andthe ( )arbitrators shall jointly select the third arbitrator who shall act as the presiding arbitrator of the arbitration tribunal. The language of the arbitration proceedings and written decisions or correspondence shall be English.(d) 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 tribunal.5.5 Notices. Any notice required or permitted pursuant to this Agreement shall be given in writing and shall be given either personally or by sending it by next-day or second-day courier service, fax, electronic mail or similar means to the address of the relevant Party as shown on Schedule C attached to the Shareholders Agreement (or at such other address as such Party may designate by fifteen (15) days’ advance written notice to the other Parties to this Agreement given in accordance with this Section). Where a notice is sent by next-day or second-day courier service, service of the notice shall be deemed to be effected by properly addressing, pre-paying and sending by next-day or second-day service through an internationally-recognized courier a letter containing the notice, with a written confirmation of delivery, and to have been effected at the earlier of (i) delivery (or when delivery is refused) and (ii) expiration of two (2) Business Days after the letter containing the same is sent as aforesaid. Where a notice is sent by fax or electronic mail, service of the notice shall be deemed to be effected by properly addressing, and sending。