SEC Info  
    Home      Search      My Interests      Help      Sign In      Please Sign In

SPI Energy Co., Ltd. – ‘20-F’ for 12/31/16 – ‘EX-4.41’

On:  Friday, 10/27/17, at 4:54pm ET   ·   For:  12/31/16   ·   Accession #:  1104659-17-64378   ·   File #:  1-37678

Previous ‘20-F’:  ‘20-F/A’ on 1/26/17 for 12/31/15   ·   Next:  ‘20-F/A’ on 2/12/18 for 12/31/16   ·   Latest:  ‘20-F/A’ on 11/23/21 for 12/31/20   ·   10 References:   

Find Words in Filings emoji
 
  in    Show  and   Hints

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

10/27/17  SPI Energy Co., Ltd.              20-F       12/31/16  161:16M                                    Toppan Merrill/FA

Annual Report by a Foreign Non-Canadian Issuer   —   Form 20-F   —   Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 20-F        Annual Report by a Foreign Non-Canadian Issuer      HTML   2.40M 
 2: EX-4.40     Instrument Defining the Rights of Security Holders  HTML     89K 
 3: EX-4.41     Instrument Defining the Rights of Security Holders  HTML     90K 
 4: EX-4.42     Instrument Defining the Rights of Security Holders  HTML     88K 
 5: EX-4.43     Instrument Defining the Rights of Security Holders  HTML     91K 
 6: EX-4.44     Instrument Defining the Rights of Security Holders  HTML    233K 
 7: EX-8.1      Opinion of Counsel re: Tax Matters                  HTML     47K 
10: EX-13.1     Annual or Quarterly Report to Security Holders      HTML     43K 
11: EX-13.2     Annual or Quarterly Report to Security Holders      HTML     43K 
 8: EX-12.1     Statement re: Computation of Ratios                 HTML     48K 
 9: EX-12.2     Statement re: Computation of Ratios                 HTML     48K 
12: EX-15.2     Letter re: Unaudited Interim Financial Info         HTML     44K 
19: R1          Document and Entity Information                     HTML     66K 
20: R2          Consolidated Balance Sheets                         HTML    189K 
21: R3          Consolidated Balance Sheets (Parenthetical)         HTML     80K 
22: R4          Consolidated Statements of Operations               HTML    124K 
23: R5          Consolidated Statements of Comprehensive Loss       HTML     61K 
24: R6          Consolidated Statements of Comprehensive Loss       HTML     44K 
                (Parenthetical                                                   
25: R7          Consolidated Statements of Equity (Deficit)         HTML    105K 
26: R8          Consolidated Statements of Cash Flows               HTML    261K 
27: R9          Description of Business and Organization            HTML    117K 
28: R10         Summary of Significant Accounting Policies          HTML    175K 
29: R11         Restricted cash                                     HTML     45K 
30: R12         Accounts Receivable                                 HTML    108K 
31: R13         Inventories                                         HTML     60K 
32: R14         Project Assets                                      HTML     80K 
33: R15         Prepaid expenses and other current assets           HTML     64K 
34: R16         Finance lease receivables                           HTML     76K 
35: R17         Property, Plant and Equipment                       HTML     76K 
36: R18         Investment in affiliates                            HTML     66K 
37: R19         Fair value measurement                              HTML    138K 
38: R20         Notes payable                                       HTML     43K 
39: R21         Accrued liabilities                                 HTML     57K 
40: R22         Advance from customers                              HTML     44K 
41: R23         Short-term borrowings and long-term borrowings      HTML     89K 
42: R24         Other liabilities                                   HTML     67K 
43: R25         Goodwill and Other Intangible Assets                HTML    120K 
44: R26         Convertible Bonds                                   HTML     50K 
45: R27         Stock option                                        HTML     46K 
46: R28         Stockholders' Equity (Deficit)                      HTML     63K 
47: R29         Stock-based Compensation                            HTML    237K 
48: R30         Provision for (reversal of) doubtful accounts and   HTML     64K 
                notes                                                            
49: R31         Impairment Charges                                  HTML     62K 
50: R32         Income Taxes                                        HTML    159K 
51: R33         Net Loss Per Share of Common Stock                  HTML     79K 
52: R34         Commitments and Contingencies                       HTML     73K 
53: R35         Operating Risk                                      HTML    113K 
54: R36         Segment information                                 HTML    116K 
55: R37         Related Party Transactions                          HTML     56K 
56: R38         Subsequent Events                                   HTML     53K 
57: R39         Summary of Significant Accounting Policies          HTML    248K 
                (Policies)                                                       
58: R40         Description of Business and Organization (Tables)   HTML     94K 
59: R41         Summary of Significant Accounting Policies          HTML     69K 
                (Tables)                                                         
60: R42         Accounts Receivable (Tables)                        HTML    102K 
61: R43         Inventories (Tables)                                HTML     60K 
62: R44         Project Assets (Tables)                             HTML     57K 
63: R45         Prepaid expenses and other current assets (Tables)  HTML     66K 
64: R46         Finance lease receivables (Tables)                  HTML     78K 
65: R47         Property, Plant and Equipment (Tables)              HTML     70K 
66: R48         Fair value measurement (Tables)                     HTML    133K 
67: R49         Accrued liabilities (Tables)                        HTML     57K 
68: R50         Short-term borrowings and long-term borrowings      HTML     86K 
                (Tables)                                                         
69: R51         Other liabilities (Tables)                          HTML     66K 
70: R52         Goodwill and Other Intangible Assets (Tables)       HTML    119K 
71: R53         Stockholders' Equity (Deficit) (Tables)             HTML     52K 
72: R54         Stock-based Compensation (Tables)                   HTML    239K 
73: R55         Provision for (Reversal Of) Doubtful Accounts and   HTML     63K 
                Notes (Tables)                                                   
74: R56         Impairment Charges (Tables)                         HTML     61K 
75: R57         Income Taxes (Tables)                               HTML    161K 
76: R58         Net Loss Per Share of Common Stock (Tables)         HTML     80K 
77: R59         Commitments and Contingencies (Tables)              HTML     54K 
78: R60         Operating Risk (Tables)                             HTML    113K 
79: R61         Segment information (Tables)                        HTML    113K 
80: R62         Description of Business and Organization -          HTML    102K 
                Variable interest entities (Details)                             
81: R63         Summary of Significant Accounting Policies - Basis  HTML     61K 
                of Presentation (Details)                                        
82: R64         Summary of Significant Accounting Policies -        HTML     56K 
                Private placements and negotiation for financial                 
                support (Details)                                                
83: R65         Summary of Significant Accounting Policies -        HTML     50K 
                Working capital management (Details)                             
84: R66         Summary of Significant Accounting Policies -        HTML     69K 
                Accounts Receivables and Allowance for Doubtful                  
                Accounts (Details)                                               
85: R67         Summary of Significant Accounting Policies - Notes  HTML     51K 
                Receivable (Details)                                             
86: R68         Summary of Significant Accounting Policies -        HTML     47K 
                Project Assets (Details)                                         
87: R69         Summary of Significant Accounting Policies -        HTML     66K 
                Property, plant and equipment (Details)                          
88: R70         Summary of Significant Accounting Policies -        HTML     48K 
                Impairment of long-lived assets (Details)                        
89: R71         Summary of Significant Accounting Policies -        HTML     52K 
                Product warranties (Details)                                     
90: R72         Summary of Significant Accounting Policies -        HTML     44K 
                Income taxes (Details)                                           
91: R73         Summary of Significant Accounting Policies -        HTML     63K 
                Revenue recognition (Details)                                    
92: R74         Summary of Significant Accounting Policies -        HTML     49K 
                Capitalized interest (Details)                                   
93: R75         Summary of Significant Accounting Policies -        HTML     45K 
                Advertising (Details)                                            
94: R76         Restricted cash (Details)                           HTML     56K 
95: R77         Accounts Receivable - Schedule of Movement of       HTML     59K 
                Allowance for Doubtful Accounts (Details)                        
96: R78         Accounts Receivable - Ageing of Accounts            HTML     70K 
                Receivable (Details)                                             
97: R79         Accounts Receivable - EPC Services (Details)        HTML    101K 
98: R80         Inventories (Details)                               HTML     56K 
99: R81         Project Assets - By location (Details)              HTML     51K 
100: R82         Project Assets - Schedule (Details)                 HTML     51K  
101: R83         Project Assets - Company Owned (Details)            HTML    113K  
102: R84         Project Assets - Revenue (Details)                  HTML     70K  
103: R85         Project Assets - Property, plant and equipment      HTML     94K  
                (Details)                                                        
104: R86         Prepaid expenses and other current assets -         HTML     66K  
                Summary of Prepaid expenses and other current                    
                assets (Details)                                                 
105: R87         Prepaid expenses and other current assets - Other   HTML     77K  
                information (Details)                                            
106: R88         Finance lease receivables - Lease and interest      HTML     47K  
                income (Details)                                                 
107: R89         Finance lease receivables - Schedule of finance     HTML     61K  
                lease receivables (Details)                                      
108: R90         Finance lease receivables - Schedule of future      HTML     62K  
                maturities of minimum lease payments receivable                  
                (Details)                                                        
109: R91         Property, Plant and Equipment (Details)             HTML    109K  
110: R92         Investment in affiliates - Investment in ENS        HTML    115K  
                (Details)                                                        
111: R93         Investment in affiliates - Melodious Investments    HTML     90K  
                Company Limited (Details)                                        
112: R94         Investment in an affiliate - Dingding Yiwei         HTML     57K  
                (Details)                                                        
113: R95         Fair value measurement - Carrying amounts and       HTML     88K  
                estimated fair values of financial instruments                   
                (Details)                                                        
114: R96         Fair value measurement - Other information          HTML     72K  
                (Details)                                                        
115: R97         Fair value measurement - Level 3 reconciliation     HTML     57K  
                (Details)                                                        
116: R98         Accrued liabilities (Details)                       HTML     54K  
117: R99         Accrued liabilities - Other tax payables (Details)  HTML     45K  
118: R100        Short-term borrowings and long-term borrowings -    HTML     88K  
                Schedule (Details)                                               
119: R101        Short-term borrowings and long-term borrowings -    HTML    133K  
                Paragraphs (Details)                                             
120: R102        Other liabilities - Schedule (Details)              HTML     62K  
121: R103        Other liabilities - Other (Details)                 HTML     44K  
122: R104        Goodwill and Other Intangible Assets - Carrying     HTML     73K  
                amount of goodwill (Details)                                     
123: R105        Goodwill and Other Intangible Assets - Other        HTML     61K  
                Intangible Assets (Details)                                      
124: R106        Goodwill and Other Intangible Assets - Future       HTML     61K  
                amortization expense (Details)                                   
125: R107        Convertible Bonds - (Details)                       HTML    116K  
126: R108        Stock option - (Details)                            HTML     78K  
127: R109        Stockholders' Equity (Deficit) - Common stock       HTML     59K  
                (Details)                                                        
128: R110        Stockholders' Equity (Deficit) - Non-controlling    HTML     48K  
                Interest (Details)                                               
129: R111        Stockholders' Equity (Deficit) - Statutory reserve  HTML     53K  
                (Details)                                                        
130: R112        Stock-based Compensation - Compensation Expense By  HTML     49K  
                Award Type (Details)                                             
131: R113        Stock-based Compensation - Compensation Expense by  HTML     52K  
                Line Item (Details)                                              
132: R114        Stock-based Compensation - Fair Value Assumptions   HTML     70K  
                (Details)                                                        
133: R115        Stock-based Compensation - Equity Incentive Plan    HTML    119K  
                (Details)                                                        
134: R116        Stock-based Compensation - Stock option activities  HTML     95K  
                (Details)                                                        
135: R117        Stock-based Compensation - Exercise price range of  HTML     68K  
                options (Details)                                                
136: R118        Stock-based Compensation - Non-vested stock awards  HTML     93K  
                (Details)                                                        
137: R119        Stock-based Compensation - Restricted stock awards  HTML     62K  
                (Details)                                                        
138: R120        Provision for (Reversal Of) Doubtful Accounts and   HTML     54K  
                Notes - (Details)                                                
139: R121        Impairment Charges - (Details)                      HTML     57K  
140: R122        Income Taxes - Loss before provision for income     HTML     50K  
                taxes by geographic locations (Details)                          
141: R123        Income Taxes - Provision for income taxes           HTML     62K  
                (Details)                                                        
142: R124        Income Taxes - Reconciliation between actual        HTML     77K  
                income tax expense and income tax (Details)                      
143: R125        Income Taxes - Deferred income taxes (Details)      HTML     97K  
144: R126        Income Taxes - Paragraphs (Details)                 HTML     62K  
145: R127        Net Loss Per Share of Common Stock (Details)        HTML     79K  
146: R128        Commitments and Contingencies - Guarantee           HTML     48K  
                (Details)                                                        
147: R129        Commitments and Contingencies - Financing           HTML     49K  
                Obligation (Details)                                             
148: R130        Commitments and Contingencies - Performance         HTML     64K  
                Guaranty and Product Warranties (Details)                        
149: R131        Commitments and Contingencies - Operating leases    HTML     63K  
                (Details)                                                        
150: R132        Commitments and Contingencies - Capital             HTML     45K  
                commitments (Details)                                            
151: R133        Commitments and Contingencies - Contingencies       HTML     79K  
                (Details)                                                        
152: R134        Operating Risk - Revenue (Details)                  HTML     81K  
153: R135        Operating Risk - Receivables (Details)              HTML     98K  
154: R136        Segment information - Net sales by major product    HTML     60K  
                and services (Details)                                           
155: R137        Segment information - Net sales by geographic       HTML     61K  
                location (Details)                                               
156: R138        Segment information - Geographic information based  HTML     61K  
                upon physical location for long-lived assets                     
                (Details)                                                        
157: R139        Related Party Transactions - (Details)              HTML    118K  
158: R140        Subsequent Events - (Details)                       HTML    123K  
160: XML         IDEA XML File -- Filing Summary                      XML    297K  
159: EXCEL       IDEA Workbook of Financial Reports                  XLSX    191K  
13: EX-101.INS  XBRL Instance -- spi-20161231                        XML   4.41M 
15: EX-101.CAL  XBRL Calculations -- spi-20161231_cal                XML    429K 
16: EX-101.DEF  XBRL Definitions -- spi-20161231_def                 XML   1.55M 
17: EX-101.LAB  XBRL Labels -- spi-20161231_lab                      XML   2.69M 
18: EX-101.PRE  XBRL Presentations -- spi-20161231_pre               XML   2.30M 
14: EX-101.SCH  XBRL Schema -- spi-20161231                          XSD    443K 
161: ZIP         XBRL Zipped Folder -- 0001104659-17-064378-xbrl      Zip    383K  


‘EX-4.41’   —   Instrument Defining the Rights of Security Holders


This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



Exhibit 4.41

 

PURCHASE AGREEMENT

 

This Purchase Agreement (this “Agreement”), dated as of July 6, 2017, is by and between Qian Kun Prosperous Times Investment Limited, a company incorporated under the Laws of the British Virgin Islands (the “Purchaser”), and SPI Energy Co., Ltd., a company incorporated under the laws of the Cayman Islands (the “Company”). Each of the Purchaser and the Company is referred to herein each as a “Party”, and collectively as the “Parties”.

 

W I T N E S S E T H:

 

WHEREAS, Tiger Capital Fund SPC participating in Tiger Global SP ( the “Tiger Fund”) and the Company have entered into a share purchase agreement dated as of April 24, 2017 ( the “SPA”) to subscribe 80,000,000 Ordinary Shares ( the “Subject Shares”), par value US$0.000001 per share (the “Ordinary Shares”), to be issued by the Company; and

 

WHEREAS, the Tiger fund and the Company agree to terminate the SPA and transfer all the rights and liabilities entitled to Tiger Fund in the SPA to subscribe the Subject Shares to the third party as a transferee designated by the Company according to the agreement of the transfer of the right of subscription agreement to third party and termination of subscription by Tiger Capital Fund SPC dated as of June 2, 2017;and

 

WHEREAS, the Purchaser as a transferee designated by the Company desire to accept the transfer of the Subject Shares; and

 

WHEREAS, the Company and the Purchaser desire to provide for the issuance, sale and purchase of the Subject Shares on the terms and conditions set forth in this Agreement; and

 

WHEREAS, the Company and the Purchaser desire to make certain representations, warranties, covenants and agreements in connection with the issuance, sale and purchase of the Subject Shares and related transactions contemplated by this Agreement.

 

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

 

ARTICLE I

 

PURCHASE AND SALE

 

Section 1.1            Issuance, Sale and Purchase of Shares. Subject to the terms and conditions of this Agreement, and in reliance upon the representations and warranties set forth herein, the Company agrees to issue, sell and deliver to the Purchaser, free and clear of any pledge, mortgage, security interest, encumbrance, lien, charge, assessment, claim or restriction of any kind or nature other than those imposed by the Articles of Association and Bylaws of the Company, and the Purchaser agrees to purchase from the Company, on the Closing Date (as defined below), 80,000,000 Ordinary Shares (the “Purchase Shares”).

 

1



 

Section 1.2            Purchase Price. The Purchaser shall pay an aggregate purchase price of US$ 5,760,000 (the “Purchase Price”) for the Purchase Shares.

 

Section 1.3            Closing.

 

(a)           Upon the terms and subject to the conditions of this Agreement, the closing (the “Closing”) of the purchase and sale of the Purchase Shares shall take place at a place determined by the Company at 9:00 A.M. New York time on a date that is no later than July 7, 2017 or at such other time or on such other date that is agreed upon in writing by the Company and the Purchaser (the “Closing Date”).

 

(b)           At or before the Closing, the Purchaser shall deliver the Purchase Price by wire transfer in immediately available funds to the Company’s bank account designated by the Company in a written notice to the Purchaser. At the Closing, the Purchaser shall deliver a certificate of a duly authorized officer of the Purchaser certifying as to the matters set forth in Section 1.4(b).

 

(c)           After the Closing and as soon as practicable, the Company shall make entry or entries in the register of members of the Company and deliver to the Purchaser the following items:

 

(i)            A share certificate (x) representing the number of Purchase Shares and (y) evidencing the Purchaser as the holder of the Purchase Shares with the rights of a holder of Ordinary Shares under the Articles of Association and the Bylaws of the Company, such rights being the same as the rights of other holders of Ordinary Shares.

 

(ii)           A copy of the updated register of members of the Company evidencing the Purchaser as the holder of the Purchase Shares.

 

Section 1.4            Closing Conditions.

 

The obligations of the Company to issue and sell the Purchase Shares as contemplated by this Agreement shall be subject to the satisfaction, on or before the Closing, of each of the following conditions, provided that any of which may be waived in writing by the Company in its sole discretion:

 

(a)           All corporate and other actions required to be taken by the Company in connection with the issuance and sale of the Purchase Shares shall have been completed and all corporate and other actions required to be taken by the Purchaser in connection with the purchase of the Purchase Shares shall have been completed.

 

(b)           The representations and warranties of the Purchaser contained in Section 2.2 of this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct in all material respects as of the Closing; and the Purchaser shall have performed and complied with in all material respects all, and not be in breach or default in any material respect under any, agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing.

 

(c)           No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits or otherwise makes illegal the consummation of, or materially and adversely alter, the transactions contemplated by this Agreement or imposes any damages or penalties that are substantial in relation to the Company; and no action, suit, proceeding or investigation shall have been instituted by or before any governmental authority of competent jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit or otherwise makes illegal the consummation of, or materially and adversely alter, the transactions contemplated by this Agreement or impose any damages or penalties that are substantial in relation to the Company.

 

2



 

ARTICLE II

 

REPRESENTATIONS AND WARRANTIES

 

Section 2.1            Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing, as follows:

 

(a)           Organization and Authority.  Each of the Company and its subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority to own and use its properties and assets and to carry on its business in all material respects as is currently conducted. Neither the Company nor any of its subsidiaries is in material violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and its subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification, except to the extent that the failure to be so qualified and in good standing would not adversely affect the ability of the Company to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement or adversely affect the ability of the Company and its subsidiaries to conduct the business as is currently conducted.

 

(b)           Due Issuance of the Purchase Shares. The Purchase Shares of the Company have been duly authorized and, when issued and delivered to the Purchaser and paid for by the Purchaser pursuant to this Agreement, will be validly issued, fully paid and non-assessable, and free of any liens or encumbrances, except as required by applicable laws, and issued in compliance with all applicable federal, securities laws and the Articles of Association and the Bylaws of the Company.

 

(c)           Authority. The Company has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by it pursuant to this Agreement and to perform its obligations hereunder. The execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite actions on its part.

 

(d)           Noncontravention. This Agreement has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the Company or any of its subsidiaries is subject. To the Company’s best knowledge, neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby, nor compliance by the Company with any of the terms and conditions hereof will contravene any existing agreement, federal, state, county or local law, rule or regulation or any judgment, decree or order applicable to, or binding upon, it.

 

3



 

(e)           Filings, Consents and Approvals. Assuming the accuracy of the representations and warranties of the Purchaser in Section 2.2(f), neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby, nor the performance by the Company of this Agreement in accordance with its terms requires the filing, consent, approval, order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority, except such as have been obtained, made, given or will be made promptly hereafter and any required filing or notification with the Securities and Exchange Commission.

 

Section 2.2            Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company as of the date hereof and as of the Closing Date, as follows:

 

(a)           Due Formation. It is a company duly incorporated as an exempted company with limited liability, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with full power and authority to own and operate and to carry on its business in the places and in the manner as currently conducted.

 

(b)           Authority. It has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by it pursuant to this Agreement and to perform its obligations hereunder. The execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite actions on its part.

 

(c)           Valid Agreement. This Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

(d)           Consents. Neither the execution and delivery by it of this Agreement nor the consummation by it of any of the transactions contemplated hereby nor the performance by it of this Agreement in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving of notice to, any governmental or public body or authority or any third party, except as have been obtained, made or given.

 

4



 

(e)           No Conflict. Neither the execution and delivery by it of this Agreement, nor the consummation by it of any of the transactions contemplated hereby, nor compliance by it with any of the terms and conditions hereof will contravene any existing agreement, federal, state, county or local law, rule or regulation or any judgment, decree or order applicable to, or binding upon, it.

 

(f)            Status and Investment Intent.

 

(i)            Experience. It has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchase Shares. It is capable of bearing the economic risks of such investment, including a complete loss of its investment.

 

(ii)           Purchase Entirely for Own Account. It is acquiring the Purchase Shares for its own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition thereof. It does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the distribution of the Purchase Shares in violation of the United States Securities Act of 1933, as amended (the “Securities Act”) or other applicable laws.

 

(iii)          Not U.S. person. It is not a “U.S. person” (as such term is defined in Regulation S of the Securities Act) and is not purchasing the Purchase Shares for the account or benefit of any “U.S. person”.

 

(iv)          Distribution Compliance Period. It acknowledges that all offers and sales of the Purchase Shares before the end of the “distribution compliance period” (as such term is defined in Regulation S of the Securities Act) be made only in accordance with Regulation S of the Securities Act, pursuant to registration of the securities under the Securities Act or pursuant to an exemption therefrom.

 

(v)           Restrictive Legend. It understands that the certificate evidencing the Purchase Shares will bear a legend or other restriction substantially to the following effect:

 

“THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NO SALE, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION OF THESE SECURITIES MAY BE MADE UNLESS EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EITHER CASE UPON THE RECEIPT OF AN OPINION OF U.S. COUNSEL.”

 

(vi)          No Broker. No broker, investment banker or other person is entitled to any broker’s, finder’s or other similar fee or commission in connection with the execution and delivery of this Agreement or the consummation of any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser.

 

(g)           Financing. It has sufficient funds available to it to purchase all of the Purchase Shares pursuant to this Agreement.

 

5



 

ARTICLE III

 

MISCELLANEOUS

 

Section 3.1            Lockup. Without the prior written consent of the Company, the Purchaser shall not sell, give, assign, hypothecate, pledge, encumber, grant a security interest in or otherwise dispose of, or suffer to exist (whether by operation of law or otherwise) any encumbrance on, any of the Purchase Shares, or any right, title or interest therein or thereto, prior to the date that is 180 days after the Closing Date.

 

Section 3.2            Survival of the Representations and Warranties. All representations and warranties made by any Party shall survive for two years and shall terminate and be without further force or effect on the second anniversary of the Closing Date. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representations or warranty and such claims shall survive until finally resolved.

 

Section 3.3            Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to Closing, (i) by mutual agreement of the Parties, (ii) by the Purchaser in the event that the Closing has not occurred by the date that is 90 days from the date of this Agreement. Nothing in this Section 3.3 shall be deemed to release any Party from any liability for any breach of this Agreement prior to the effective date of such termination.

 

Section 3.4            Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof.

 

Section 3.5            Dispute Resolution. Any dispute, controversy or claim (each, a “Dispute”) arising out of or relating to this Agreement, or the interpretation, performance breach, termination, validity or invalidity thereof, shall be referred to arbitration upon the demand of any Party to the dispute with notice (the “Arbitration Notice”) to the other Party.

 

(a)           The Dispute shall be settled in Hong Kong in a proceeding conducted in English by one (1) arbitrator from the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “HKIAC Rules”) in force when the Arbitration Notice is submitted in accordance with the HKIAC Rules.

 

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

 

(c)           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.

 

6



 

(d)           During the course of the arbitral tribunal’s adjudication of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.

 

Section 3.6            Amendment. This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto.

 

Section 3.7            Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Parties and their respective heirs, successors and permitted assigns.

 

Section 3.8            Assignment. Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by the Company or the Purchaser without the express written consent of the other Party. Any purported assignment in violation of the foregoing sentence shall be null and void.

 

Section 3.9            Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of actual delivery if delivered personally to the Parties to whom notice is to be given, on the date sent if sent by telecopier, tested telex or prepaid telegram, on the next business day following delivery if sent by courier or on the day of attempted delivery by postal service if mailed by registered or certified mail, return receipt requested, postage paid, and properly addressed as follows:

 

If to the Purchaser, at:

Qian Kun Prosperous Times Investment Limited

 

Room 1702, Building 7,Gongguan 1881,

 

No.81 Shenghe 3rd Road, Gao Xin District,

 

Chengdu, China

 

 

If to the Company, at:

SPI Energy Co., Ltd.

 

Room 2703, 27th Floor,

 

China Resources Building,

 

No. 26 Harbour Road,

 

Wanchai, Hong Kong

 

Any Party may change its address for purposes of this Section 3.9 by giving the other Party a written notice of the new address in the manner set forth above.

 

Section 3.10         Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to the matters covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters covered hereby are merged and superseded by this Agreement.

 

Section 3.11         Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

 

7



 

Section 3.12         Fees and Expenses. Except as otherwise provided in this Agreement, each Party will be responsible for all of its own expenses incurred in connection with the negotiation, preparation and execution of this Agreement.

 

Section 3.13         Public Announcements. The Purchaser shall not make, or cause to be made, any press release or public announcement in respect of this Agreement or the transactions contemplated by this Agreement or otherwise communicate with any news media without the prior written consent of the Company unless otherwise required by securities laws or other applicable law.

 

Section 3.14         Specific Performance. The Parties agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof. Accordingly, each Party shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

 

Section 3.15         Headings. The headings of the various articles and sections of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication limit, define or extend the specific terms of the section so designated.

 

Section 3.16         Execution in Counterparts. For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

 

SIGNATURE PAGE FOLLOWS

 

8



 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

 

SPI Energy Co., Ltd.

 

 

 

 

 

By:

/s/ XIAOFENG PENG

 

 

Name:

XIAOFENG PENG

 

 

Title:

Chairman & CEO

 



 

 

Purchaser:

 

 

 

 

 

Qian Kun Prosperous Times Investment Limited

 

 

 

 

 

By:

/s/ Authorized Signatory

 

 

Name: Authorized Signatory

 

 

Title:

 



Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘20-F’ Filing    Date    Other Filings
Filed on:10/27/17
7/7/17
7/6/17
6/2/17
4/24/17
For Period end:12/31/1620-F/A,  6-K,  NT 20-F
 List all Filings 


10 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 4/14/23  SPI Energy Co., Ltd.              10-K       12/31/22  129:11M                                    GlobalOne Filings Inc/FA
 4/01/22  SPI Energy Co., Ltd.              10-K       12/31/21  133:11M                                    GlobalOne Filings Inc/FA
11/23/21  SPI Energy Co., Ltd.              20-F/A     12/31/20  127:8.2M                                   GlobalOne Filings Inc/FA
10/29/21  SPI Energy Co., Ltd.              20-F/A     12/31/20  126:13M                                    GlobalOne Filings Inc/FA
 4/29/21  SPI Energy Co., Ltd.              20-F       12/31/20  128:8.1M                                   GlobalOne Filings Inc/FA
 6/18/18  SEC                               UPLOAD7/17/18    1:35K  SPI Energy Co., Ltd.
 5/14/18  SEC                               UPLOAD7/17/18    1:41K  SPI Energy Co., Ltd.
 4/04/18  SEC                               UPLOAD7/17/18    1:134K SPI Energy Co., Ltd.
 3/05/18  SEC                               UPLOAD7/17/18    1:145K SPI Energy Co., Ltd.
12/21/17  SEC                               UPLOAD7/17/18    1:152K SPI Energy Co., Ltd.
Top
Filing Submission 0001104659-17-064378   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
AboutPrivacyRedactionsHelp — Thu., Mar. 28, 8:16:50.2pm ET