Sea Ltd 6-K, filed Dec 15, 2020
Sea Ltd (SE)
6-K
2020-12-15
For: 2020-12-15
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About this 6-K
Sea Ltd filed this 6-K on December 15, 2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of December 2020
Commission File Number: 001-38237
Sea Limited
1 Fusionopolis Place, #17-10, Galaxis
Singapore 138522
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
INCORPORATION BY REFERENCE
This report on Form 6-K shall be deemed to be incorporated by reference into the Registration Statement of Sea Limited on Form F-3 filed on March 1, 2019 (File No.
333-230021) and to be a part thereof from the date on which this report is furnished, to the extent not superseded by documents or reports subsequently filed or furnished.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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SEA LIMITED
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By:
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/s/ Forrest Xiaodong Li
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Name:
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Forrest Xiaodong Li
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Title:
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Chairman and Group Chief Executive Officer
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Date: December 15, 2020
EXHIBIT INDEX
Exhibit 1.1 — Underwriting Agreement, dated December 10, 2020, among Sea Limited, Goldman Sachs (Asia) L.L.C. and J.P. Morgan
Securities LLC
Exhibit 5.1 — Opinion of Maples and Calder (Hong Kong) LLP regarding the validity of the Class A ordinary shares being registered
Exhibit 23.1 — Consent of Maples and Calder (Hong Kong) LLP (included in Exhibit 5.1)
Exhibit 1.1
SEA LIMITED
13,200,000 American Depositary Shares
Representing
13,200,000 Class A Ordinary Shares
UNDERWRITING AGREEMENT
December 10, 2020
Goldman Sachs (Asia) L.L.C.
68th Floor, Cheung Kong Center
2 Queen’s Road Central, Hong Kong
J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
As Representatives of the Several Underwriters named in Schedule A hereto
Ladies and Gentlemen:
1. Introduction. Sea Limited, a company incorporated under the laws of the Cayman Islands (“Company”), agrees, subject to the terms and conditions stated herein, to issue
and sell to the several Underwriters named in Schedule A hereto (“Underwriters”), an aggregate of 13,200,000 American Depositary Shares (“ADSs”), each ADS representing
one Class A ordinary share, par value US$0.0005 per share (the “Ordinary Shares”), of the Company (the “Firm Securities”). The Company also agrees to sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than 1,980,000 ADSs (the “Optional Securities”), subject to the terms and conditions stated herein. The Firm Securities and the
Optional Securities are hereinafter collectively referred to as the “Offered Securities.” Unless the context otherwise requires, each reference to the Firm Securities, the Optional Securities or the Offered
Securities herein also includes the underlying Ordinary Shares (hereinafter referred to as the “Offered Shares”).
The ADSs are to be issued pursuant to a deposit agreement (the “Deposit Agreement”), dated as of October 19, 2017, among the Company, The Bank
of New York Mellon, as depositary (the “Depositary”), and holders and beneficial holders from time to time of the American Depositary Receipts (“ADRs”) issued by the
Depositary pursuant to the Deposit Agreement and evidencing the ADSs. Each ADS will initially represent the right to receive one Ordinary Share deposited.
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2. Representations
and Warranties of the Company.
The Company represents and warrants to, and agrees with, the several Underwriters that:
(a) The Company meets the requirements for the use of Form F-3 under the Act. The Company has filed with the Commission a registration statement on Form F-3 (File No. 333-230021), including a related prospectus or prospectuses, covering the
registration of Ordinary Shares and ADSs under the Act, which has become effective. “Registration Statement” at any particular time means such registration statement in the form then filed with the
Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not been superseded or modified. “Registration Statement” without reference to a time means the Registration Statement as of the Effective Time. For purposes of this definition, 430B Information shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B. The Company and the Depositary have prepared and filed with the Commission a registration statement on Form F-6 (No. 333-220861) for the registration under the Act of the ADSs, have
filed such amendments thereto and such amended preliminary prospectus as may have been required to the date hereof, and will file such additional amendments thereto and such amended prospectus as may hereafter be required. The registration
statement on Form F-6 for the registration of the ADSs, as amended (including by the filing of any post-effective amendments thereto), is hereinafter called the “ADS Registration Statement”.
Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Final Prospectus, as the case may be and any reference to “amend”, “amendment” or “supplement” with
respect to the Registration Statement, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include any documents filed after such date that are deemed to be incorporated by reference therein.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part of the Registration Statement
pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part of the Registration Statement
pursuant to Rule 430C.
“Act” means the United States Securities Act of 1933, as amended.
“Applicable Time” means 7:24 P.M., New York City time, on December 10, 2020.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the United States Securities and Exchange Commission.
“Covered Entity” has the meaning defined in Section 2(i) hereof.
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“Effective Time” of the Registration Statement relating to the Offered Securities means the time of the first contract
of sale for the Offered Securities.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the Public Offering Price, other 430B Information and
other final terms of the Offered Securities and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the
Offered Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g). The Company has made available a “bona fide electronic road
show,” as defined in Rule 433, in compliance with Rule 433(d)(8)(ii) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Offered Securities.
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Issuer
Free Writing Prospectus and as stated in Schedule B-1 to this Agreement.
“Material Adverse Effect” means a material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company, the Subsidiaries (as defined below) and the Affiliated Entities (as defined below), taken as a whole.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”),
the Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board
and, as applicable, the rules of the New York Stock Exchange (“NYSE”) (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus (including a prospectus supplement)
relating to the Offered Securities that is included in the Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing
definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not
retroactively.
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Unless otherwise specified, a reference to a “Rule” is to the indicated rule under the Act.
(b) (i) (A) At the time each of the Registration
Statement and the ADS Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post‑effective amendment, incorporated report or form
of prospectus), (C) at the Effective Time relating to the Offered Securities and (D) on the Closing Date, each of the Registration Statement and the ADS Registration Statement conformed and will conform in all material respects to the
requirements of the Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not
misleading and (ii) (A) on its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus will conform in all material respects to the requirements of the Act and the Rules and
Regulations, and will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from any such document based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein.
(c) (i) (A) At the time of initial filing of the Registration Statement, (B) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the exemption of Rule 163, the Company was a
“well-known seasoned issuer” as defined in Rule 405, including not having been an “ineligible issuer” as defined in Rule 405.
(ii) The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially became effective within three years of the date of this Agreement. The ADS Registration Statement has become
effective under the Act. If immediately prior to the Renewal Deadline (as hereinafter defined), any of the Offered Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has not already done so and
is eligible to do so, a new automatic shelf registration statement relating to the Offered Securities, in a form reasonably satisfactory to the Representatives. If the Company is no longer eligible to file or use an automatic shelf registration
statement and any of the Offered Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Offered Securities, in a form
reasonably satisfactory to the Representatives, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate
to permit the public offering and sale of the Offered Securities to continue as contemplated in the expired registration statement relating to the Offered Securities. References herein to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration statement, as the case may be. “Renewal Deadline” means the third anniversary of the initial effective time of the Registration Statement.
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(iii) The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form. No stop order suspending the effectiveness of the Registration
Statement or the ADS Registration Statement has been issued under the Act or the Exchange Act, as applicable, and no proceedings for such purpose have been instituted or are pending before or, to the best knowledge of the Company, are contemplated
or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with. If at any time when Offered Securities remain unsold by the Underwriters the Company receives from the Commission a
notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective
amendment on the proper form relating to the Offered Securities, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as
practicable, and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective
amendment, as the case may be.
(iv)
The Company has paid or shall pay the required Commission filing fees relating to the Offered Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(d) Each
document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement, the Final Prospectus and the General Disclosure Package (as defined below) complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder.
(e) (i) At the
earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date of this Agreement, the
Company was not and is not an “ineligible issuer,” as defined in Rule 405, including (x) the Company or any of the Subsidiaries or Affiliated Entities of the Company in the preceding three years not having been convicted of a felony or misdemeanor
or having been made the subject of a judicial or administrative decree or order as described in Rule 405 and (y) the Company in the preceding three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not
having had a registration statement be the subject of a proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the Act in connection with the offering of the Offered Securities, all as described in Rule
405.
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(f) Each Issuer Free Writing Prospectus as of its issue date and at all subsequent times through
the completion of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, conformed, conforms and will conform in all material
respects to the requirements of the Act and the Rules and Regulations and did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained or incorporated by reference in the
Registration Statement, the General Disclosure Package or the Final Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus, as applicable, conflicted or would conflict with the information then contained or incorporated by reference in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, as applicable, if republished
immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading, (i) the Company has promptly notified or will promptly notify the Representatives and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus, as applicable, to
eliminate or correct such conflict, untrue statement or omission.
(g) As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued
at or prior to the Applicable Time and the preliminary prospectus supplement, dated December 9, 2020, including the base prospectus dated March 1, 2019 (which is the most recent Statutory Prospectus distributed to investors generally) and the other
information, if any, stated in Schedule B to this Agreement, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer Free Writing Prospectus stated
in Schedule B-1 to this Agreement, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically for use therein.
(h) The Company has been duly incorporated and is validly existing under the laws of the Cayman
Islands, with power and authority (corporate and otherwise) to own its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Final Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing (to the extent that good standing is applicable in such jurisdiction) in all other jurisdictions in which its ownership or lease of property or the conduct of its business in such other
jurisdictions requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. The eighth amended and restated memorandum and articles of association of the
Company comply with the requirements of applicable Cayman law and are in full force and effect.
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(i) (i) Certain subsidiaries of the Company listed in Schedule C hereto are referred to in this
Agreement as the “Covered Subsidiaries.” (ii) Certain of the entities through which the Company conducts its operations and consolidates in its financial statements are by way of contractual arrangements
(each an “Affiliated Entity” and collectively, the “Affiliated Entities”). The Affiliated Entities of the Company listed in Schedule D to this Agreement are referred to
in this Agreement as the “Covered Affiliated Entities.” (iii) Other than the Covered Subsidiaries and the Covered Affiliated Entities, the Company does not own, directly or indirectly, any share capital or
any other equity interests or otherwise control, any entity which would individually or in the aggregate constitute a “significant subsidiary” as defined under Rule 1-02(w) of Regulation S-X under the Act. (iv) The Covered Subsidiaries and all
other subsidiaries of the Company are hereinafter referred to each as a “Subsidiary” and collectively as the “Subsidiaries.” Unless the context otherwise requires,
reference to a “Subsidiary” or an “Affiliated Entity” also includes the branches established by such Subsidiary or Affiliated Entity. (v) The Covered Subsidiaries and the Covered Affiliated Entities are hereinafter referred to collectively as the “Covered Entities” and each individually as a “Covered Entity.” (vi) Each Covered Entity has been duly incorporated and is validly existing as a corporation in good standing
(to the extent that good standing is applicable in such jurisdiction) under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the
Registration Statement, the General Disclosure Package and the Final Prospectus; and each Covered Entity is duly qualified to do business as a foreign corporation in all other jurisdictions (if applicable) in which its ownership or lease of
property or the conduct of its business in such other jurisdictions requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; the constitutive documents of
each Covered Entity comply with the requirements of applicable laws of the jurisdiction of its incorporation in all material respects and are in full force and effect. (vii) All of the issued and outstanding share capital of each Covered Subsidiary
has been duly authorized and validly issued and is fully paid and nonassessable (to the extent nonassessable is applicable in such jurisdiction), and, except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, such share capital is owned, directly or indirectly, by the Company free and clear from all liens, encumbrances, equities, claims and defects; all of the issued and outstanding share capital of each Covered Affiliated Entity has been
duly authorized and validly issued and is fully paid and nonassessable (to the extent nonassessable is applicable in such jurisdiction), and, except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, such share capital is owned directly as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus (to the extent such documents actually describe such ownership) free and clear from all liens,
encumbrances, equities, claims and defects.
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(j) The Offered Securities and all authorized share capital of the Company have been duly authorized;
the authorized equity capitalization of the Company is as set forth in the Registration Statement, the General Disclosure Package and the Final Prospectus; all outstanding ordinary shares of the Company are, and, when the Offered Securities have
been delivered and paid for in accordance with this Agreement on each Closing Date, such Offered Securities will be duly authorized and validly issued, fully paid and nonassessable, and conform in all material respects to the description of such
Offered Securities contained or incorporated by reference in the General Disclosure Package and the Final Prospectus; except as disclosed in the General Disclosure Package and the Final Prospectus, there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable for, any ordinary shares or other equity interest in the Company or any of the Covered Entities, or any contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any ordinary shares of the Company or any Covered Entity, any such convertible or exchangeable securities or any such rights, warrants or options; the Offered Shares, when issued and delivered against payment thereof,
may be freely deposited by the Company with the Depositary against issuance of ADRs evidencing the ADSs; the ADSs to be sold by the Company, when issued and delivered against payment thereof, will be freely transferable by the Company to or for the
account of the Underwriters; and except as disclosed in the General Disclosure Package, there are no restrictions on subsequent transfers of such ADSs by the Underwriters under the laws of the Cayman Islands or the United States.
(k) The description of the corporate structure of the Company and certain Subsidiaries and
Affiliated Entities, as set forth in the Company’s annual report on Form 20-F for the fiscal year ended December 31, 2019 (the “Annual Report”) and incorporated by reference in the Registration Statement, the
Final Prospectus or the General Disclosure Package under the caption “Item 4. Information on the Company — C. Organizational Structure,” is true and accurate in all material respects, nothing has been omitted from such description which would make
it misleading in any material respect, and each of the events and transactions described therein does not (i) contravene, in any material respect, any provision of applicable law or statute, rule or regulation of any governmental agency having
jurisdiction over the Company or any of such Subsidiaries and Affiliated Entities, (ii) contravene the articles of association, business license or other constitutive documents of the Company or any of such Subsidiaries and Affiliated Entities, or
(iii) contravene or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any license, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which the
Company or any of such Subsidiaries and Affiliated Entities is a party or by which the Company or any of such Subsidiaries and Affiliated Entities is bound or to which any of the property or assets of the Company or any of such Subsidiaries and
Affiliated Entities is subject, except under (iii) above to the extent that such contravention, violation or breach would not have a Material Adverse Effect. There is no agreement, contract or other document material to the corporate structure or
the operation of the Company and its Subsidiaries and Affiliated Entities, taken as a whole, which has not been disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus.
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(l) (i) Each of the contracts, arrangements and agreements among or between, as the case may be,
the shareholders of the Covered Affiliated Entities and/or the Covered Affiliated Entities, on the one hand, and the Company and/or its relevant Subsidiaries, on the other, relating to the Company’s effective control of such Covered Affiliated
Entities (each a “Corporate Structure Contract” and collectively the “Corporate Structure Contracts”), has been duly authorized, executed and delivered by the parties
thereto and constitutes a valid and legally binding obligation of the parties thereto, enforceable in accordance with its terms subject, as to enforceability, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors’ rights and to general equity principles. No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or
any court) is required for the performance of the obligations under any Corporate Structure Contract by the parties thereto, except as already obtained or disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus and to the extent that any failure to obtain such consent, approval, authorization, order filing or registration would have a Material Adverse Effect; and no consent, approval, authorization, order, filing or registration that has been
obtained is being withdrawn or revoked or is subject to any condition precedent which has not been fulfilled or performed. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the corporate
structure of the Company complies with all applicable laws and regulations in all material respects, and neither the ownership structure nor the Corporate Structure Contracts violate, breach, contravene or otherwise conflict in any material respect
with any applicable laws. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, there is no legal or governmental proceeding, inquiry or investigation pending against the Company, the relevant
Subsidiaries, the Covered Affiliated Entities or shareholders of the Covered Affiliated Entities in any jurisdiction challenging the validity of any of the Corporate Structure Contracts and, to the best knowledge of the Company, no such proceeding,
inquiry or investigation is threatened in any jurisdiction which would individually or in the aggregate have a Material Adverse Effect.
(ii) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Final Prospectus, the execution, delivery and performance of each Corporate Structure Contract by the parties thereto do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or
result in the imposition of any lien, encumbrance, equity or claim upon any property or assets of the Company or any of the Subsidiaries (to the extent that it is a party to such Corporate Structure Contract) and the Covered Affiliated Entities
pursuant to (i) the constitutive or organizational documents of the Company or any of such Subsidiaries and Affiliated Entities, (ii) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any of such Subsidiaries and Covered Affiliated Entities or any of their properties, or any arbitration award, or (iii) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of such Subsidiaries and Covered Affiliated Entities is a party or by which the Company or any of such Subsidiaries and Covered Affiliated Entities is bound or to which any of the properties of the Company or any of such
Subsidiaries and Covered Affiliated Entities is subject, except under (iii) above to the extent that such breach, violation, default, encumbrance and claim would not have a Material Adverse Effect. None of the parties thereto is in breach or
default in the performance of any of the terms or provisions of such Corporate Structure Contract. None of the parties to any of the Corporate Structure Contracts has sent or received any communication regarding termination of, or intention not to
renew, any of the Corporate Structure Contracts, and, to the best knowledge of the Company, no such termination or nonrenewal has been threatened by any of the parties thereto.
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(iii) The Company possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of the Covered Affiliated Entities, through its rights to exercise the voting rights with respect to the equity interest in such Covered Affiliated Entities pursuant to the Corporate Structure Contracts.
(m) (i) The consolidated or condensed financial statements (and the notes thereto) of the Company
included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus comply in all material respects with the applicable requirements of the Act; the summary and selected consolidated
financial data included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus comply in all material respects with the applicable requirements of the Act, and present fairly the
information shown therein and have been compiled on a basis consistent with that of the consolidated financial statements included therein. (ii) There are no financial statements (historical or pro forma) that are required to be included in the
Annual Report, the Registration Statement, the General Disclosure Package or the Final Prospectus that are not included as required. (iii) The Company and the Covered Entities do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), that are not described in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(n) Except as described in the Registration Statement, the General Disclosure Package and the Final
Prospectus, since the end of the period covered by the most recent financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus (i) there has been no change,
development or event that would have a Material Adverse Effect, (ii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its share capital, (iii) there has been no material adverse change in
the share capital, short-term indebtedness or long-term indebtedness of the Company and the Subsidiaries and Affiliated Entities, taken as a whole, (iv) neither the Company nor any of the Subsidiaries and Affiliated Entities has entered into any
material transaction or agreement or incurred any material liability or obligation, direct or contingent, that is not disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, and (v) neither the Company nor
any of the Covered Entities has sustained any material loss or material interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree.
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(o) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, the Company and the Covered Entities have good and marketable title to all material properties (excluding Intellectual Property Rights as described below) and assets owned by them, in each case free from liens, charges, encumbrances and
defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them and, any material real property and buildings held under lease by each of the Company and the Covered Entities are held
by them under valid and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Covered Entities.
(p) Except as described in the Registration Statement, the General Disclosure Package and the Final
Prospectus, the Company and each of the Covered Entities maintain insurance from reputable insurers consistent with industry practice, against such losses and risks to an extent which is reasonably adequate to protect the Company and the Covered
Entities and their respective businesses; neither the Company nor any of the Covered Entities has any reason to believe that it will not be able to renew any such insurance as and when such insurance expires or to obtain similar coverage from
similar insurers; and there is no material insurance claim made by or against the Company or any of the Covered Entities, pending, outstanding or threatened, and no facts or circumstances exist which would reasonably be expected to give rise to any
such claim and all due premiums in respect thereof have been paid.
(q) Neither the
Company nor any of the Covered Entities has sent or received any communication regarding termination of, or, where applicable, intent not to renew, any of the material contracts or agreements referred to or described in the Registration Statement,
the General Disclosure Package and the Final Prospectus or filed as an exhibit to the Annual Report, and no such termination or nonrenewal has been threatened by the Company or any of the Covered Entities or, to the best knowledge of the Company,
by any other party to any such contract or agreement.
(r) Each of the Company and the Covered Entities possesses, is in compliance with the terms of, and
is not in breach of or in default under, all certificates, authorizations, franchises, consents, approvals, orders, licenses (excluding Intellectual Property Rights as described below) and permits and has made all declarations and filings with, the
appropriate domestic or foreign governmental or regulatory authorities (collectively, “Licenses”) material to the conduct of the businesses as described in the Registration Statement, the General Disclosure
Package and the Final Prospectus and to own, lease, license and use its properties and assets, except to the extent that any such noncompliance, breach, default or failure would not have a Material Adverse Effect and has not received any notice of
proceedings relating to, and, to the best knowledge of the Company, is not aware that any regulatory body is considering, the suspension, revocation or modification of any such Licenses that, if determined adversely to the Company or any of the
Covered Entities, would have a Material Adverse Effect.
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(s) Neither the Company nor any of the Covered Entities is (i) in violation of its respective
memorandum and articles of association, charter or other constitutive documents, (ii) in violation of any statute, law, rule, regulation, ordinance, directive, judgment, decree, guideline, notice or order of any judicial, regulatory or other legal
or governmental agency or body, foreign or domestic, having jurisdiction over the Company or any of the Covered Entities, or (iii) in default (or with the giving of notice or lapse of time would be in default) under any existing obligation,
agreement, covenant or condition contained in any indenture, loan agreement, deed of trust, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any
of them is subject, except such violation or default under (ii) or (iii) above that would not result in a Material Adverse Effect.
(t) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, no consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required to be obtained or made by the Company for the issue and sale of the
Offered Securities, for the deposit of the Offered Shares with the Depositary against issuance of the Offered Securities or the consummation of the transactions contemplated by this Agreement and the Deposit Agreement (collectively, the “Transaction Documents”) in connection with the issuance, offering and sale of the Offered Securities, except such as have been obtained, or made and such as may be required under state securities laws of the
United States.
(u) The execution, delivery and performance of the Transaction Documents, and the issuance and sale
of the Offered Securities hereunder and the deposit of the Offered Shares with the Depositary against issuance of the Offered Securities and the consummation of the transactions contemplated by the Transaction Documents in connection with the
offering contemplated hereby will not (i) result in a breach or violation of any of the terms or provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound or to which any of the properties or assets of the Company or any of its Subsidiaries is subject; (ii) result in any violation of the provisions of the memorandum and articles
of association, charter or other constitutive documents of the Company or any of the Covered Entities; (iii) result in a violation of any License; or (iv) result in the violation of any applicable judgment, law or statute or any order, rule or
regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of the Covered Entities or any of their properties or assets, except such breach or violation under (i) or (iii) that would
not result in a Material Adverse Effect. A “Debt Repayment Triggering Event” means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note,
debenture, or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of the Covered Entities.
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(v) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by
the Company under the Act (collectively, “registration rights”).
(w) This Agreement has been duly authorized, executed and delivered by the Company.
(x) The Deposit Agreement has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Depositary, constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforceability, bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and general equity principles. The ADSs, when issued by the Depositary against the deposit of the Offered Shares in respect
thereof in accordance with the provisions of the Deposit Agreement, will be duly authorized, validly issued, fully paid and nonassessable, and the persons in whose names such ADSs are registered will be entitled to the rights of registered holders
of the ADSs specified therein and in the Deposit Agreement. The Deposit Agreement and the ADSs conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement, the General Disclosure
Package and the Final Prospectus.
(y) All dividends and other distributions declared and payable on the Offered Shares may, under the
current laws and regulations of the Cayman Islands, be paid to the Depositary, and where they are to be paid from the Cayman Islands are freely transferable out of the Cayman Islands; all such dividends and other distributions will not be subject
to withholding or other taxes under the laws and regulations of the Cayman Islands and are otherwise free and clear of any other tax, withholding or deduction in the Cayman Islands and without the necessity of obtaining any consents, approvals,
authorizations, orders, registrations, clearances or qualifications of or with any court or governmental agency in the Cayman Islands.
(z) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Final Prospectus, no Covered Subsidiary is currently prohibited, directly or indirectly, under any applicable laws or regulations, from paying any dividends to its shareholders, from making any other distribution on such Covered Subsidiary’s share
capital, from repaying to the Company any loans or advances to such Covered Subsidiary from the Company or from transferring any of such Covered Subsidiary’s property or assets to the Company or any other Subsidiary. Except as disclosed in the
Registration Statement, the General Disclosure Package and the Final Prospectus, no Covered Affiliated Entity or shareholder of such Covered Affiliated Entity, as the case may be, is currently prohibited, directly or indirectly, under any
applicable laws or regulations, from making any payments or other distributions to the Company and/or its Subsidiaries or third parties designated by the Company or its Subsidiaries as is required under the applicable Corporate Structure Contracts,
or from repaying to the Company and/or its Subsidiaries or third parties designated by the Company or its Subsidiaries any loans or advances made to such Covered Affiliated Entity or shareholder of such Covered Affiliated Entity, as the case may
be, from the Company and/or its Subsidiaries or third parties designated by the Company or its Subsidiaries pursuant to the applicable Corporate Structure Contracts.
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(aa) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, no stamp, issuance, documentary or registration taxes or any other taxes or duties of a similar nature are payable by or on behalf of the Underwriters to any Cayman Islands or Singapore taxing authority in connection with (i) the
issuance, sale and delivery of the Offered Shares by the Company, the deposit of the Offered Shares with the Depositary, the issuance of the Offered Securities by the Depositary, and the delivery of the Offered Securities to or for the account of
the Underwriters, (ii) the purchase from the Company of the Offered Shares and the initial sale and delivery of the Offered Securities representing the Offered Shares to purchasers thereof by the Underwriters, or (iii) the execution, delivery and
enforcement of the Transaction Documents, except that Cayman Islands or Singapore stamp duty may be payable in the event that any Transaction Documents is executed in or brought within the jurisdiction of the Cayman Islands and Singapore, as
applicable.
(bb) Neither the Company, any of the Subsidiaries and Affiliated Entities nor any of their respective
directors, officers or affiliates, acting on its behalf, has taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Offered Securities.
(cc) The statements in the Registration Statement, the General Disclosure Package and the Final
Prospectus under the headings “Prospectus Supplement Summary,” “Risk Factors,” “Dividend Policy,” “Enforceability of Civil Liabilities,” “Description of Share Capital,” “Description of American Depositary Shares” and “Taxation” insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects. The preceding sentence, insofar as it
relates to statements in the Registration Statement, the General Disclosure Package and the Final Prospectus under the heading “Underwriting,” does not apply to information furnished to the Company by any Underwriter through the Representatives
specifically for use therein. The statements set forth in the Annual Report under the captions “Item 4. Information on the Company — B. Business Overview,” “Item 5. Operating and Financial Review and Prospects — B. Liquidity and Capital Resources,”
“Item 6. Directors, Senior Management and Employees — B. Compensation of Directors and Executive Officers,” “Item 6. Directors, Senior Management and Employees — C. Board Practice,” “Item 8. Financial Information — Legal and Administrative
Proceedings,” “Item 10. Additional Information — B. Memorandum and Articles of Association” and “Item 10. Additional Information — E. Taxation,” as supplemented or modified by the information included in the Registration Statement, the General
Disclosure Package and the Final Prospectus, and the statements set forth in in the interim report on Form 6-K as filed with the Commission on December 9, 2020 under “Management’s Discussion and Analysis of Financial Condition and Results of
Operations,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
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(dd) Any
third-party statistical, industry and market-related data included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus are based on or derived from sources that the Company believes to
be reliable and accurate, and such data agree with the sources from which they are derived. The Company has obtained written consents for the use of such data from such sources to the extent required as determined in the Company’s reasonable
discretion.
(ee) There are no pending actions, suits or proceedings (including any inquiries or investigations by
any court or governmental agency or body, domestic or foreign) against or affecting the Company, any of the Covered Entities or any of their respective properties that, if determined adversely to the Company or any of the Covered Entities, would
individually or in the aggregate have a Material Adverse Effect, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings (including any inquiries or investigations by any court
or governmental agency or body, domestic or foreign) are to the Company’s best knowledge, threatened or contemplated.
(ff) To the Company’s best knowledge, the Company’s directors and executive officers are not a party
to any legal, governmental or regulatory proceedings that would result in such director or officer to be unsuitable for his or her position on the Company’s Board of Directors (the “Board”) or in the Company.
(gg) The Company is not and, after giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the Registration Statement, the General Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” as
defined in the United States Investment Company Act of 1940, as amended (the “Investment Company Act”).
(hh) The Company does not expect to be a “passive foreign investment
company” for U.S. federal income tax purposes for its current taxable year ending December 31, 2020.
(ii) There are no contracts or other documents that are required to be described in the Registration
Statement, the General Disclosure Package and the Final Prospectus or to be filed as exhibits to the Registration Statement under the Act or the Exchange Act (those so filed, collectively, the “Filed Documents”)
that are not described or filed as required under the Act or the Exchange Act. Neither the Company nor any of the Covered Entities has knowledge that any other party to any Filed Document has any intention not to render full performance as
contemplated by the terms thereof.
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(jj) The Company and the Covered Entities own or possess or can acquire on reasonable terms
sufficient trademarks, trade names, patent rights, copyrights, domain names, service marks, approvals, trade secrets, databases, logos, designs, proprietary processes, inventions, technology, know-how and other intellectual property and similar
rights, including registrations and applications for registration thereof and unpatented and unpatentable proprietary or confidential information, inventions, systems and procedures (collectively, “Intellectual
Property Rights”) material to, or can license such Intellectual Property Rights on reasonable terms sufficient for, the conduct of the business as described in the Registration Statement, the General Disclosure Package and the Final
Prospectus, and the expected expiration of any such Intellectual Property Rights (to the extent that the Company reasonably anticipates to be unable to renew or extend such rights) would not, individually or in the aggregate, have a Material
Adverse Effect. Except as disclosed in the Registration Statement, General Disclosure Package and the Final Prospectus, (i) to the Company’s best knowledge, there are no rights of third parties to any of the Intellectual Property Rights owned by
the Company or the Covered Entities, except those duly licensed by the Company or Covered Entities to third parties, except such rights would not have a Material Adverse Effect; (ii) to the Company’s best knowledge, there is no material
infringement, misappropriation, breach, default or other violation, or the occurrence of any event that with notice or the passage of time would constitute any of the foregoing, by third parties of any of the Intellectual Property Rights owned by
the Company or the Covered Entities; (iii) there is no material pending or threatened action, suit, proceeding or claim by others challenging the Company’s or any Covered Entity’s rights in or to, or the violation of any of the terms of, any of
their Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (iv) there is no material pending or, to the Company’s best knowledge, threatened action, suit, proceeding or claim
by others challenging the validity, enforceability or scope of any Intellectual Property Rights owned by the Company or Covered Entities, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (v) there is
no material pending or, to the Company’s best knowledge, threatened action, suit, proceeding or claim by others, and neither the Company nor any of the Covered Entities has received any letter, notice or warning (whether written or unwritten) from
others alleging, that the Company or any Covered Entity infringes, misappropriates or otherwise violates or conflicts with any Intellectual Property Rights of others, and the Company is unaware of any other fact which would form a reasonable basis
for any such claim, except such letter, notice or warning containing allegations that would not have a Material Adverse Effect; and (vi) none of the Intellectual Property Rights used by the Company or the Covered Entities in their businesses has
been obtained or is being used by the Company or the Covered Entities in violation of any contractual obligation binding on the Company or any of the Covered Entities or in violation of the rights of any persons, except such violations that would
not have a Material Adverse Effect.
(kk) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, the Company has not issued any ordinary shares during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or Regulation S of, the Act, other than shares issued pursuant to the
conversions or exchanges of the Company’s convertible notes described in the Registration Statement, the General Disclosure Package and the Final Prospectus, or shares issued pursuant to the Company’s employee share option scheme, other equity
plans or similar transactions.
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(ll) The Company is a “foreign private issuer” within the meaning of Rule 405 under the Act (a “Foreign Private Issuer”).
(mm) Ernst & Young LLP, which has certified certain consolidated financial statements of the
Company, is an independent registered public accounting firm with respect to the Company within the applicable rules and regulations adopted by the Commission and the U.S. Public Company Accounting Oversight Board and as required by the Act.
(nn) The Company maintains an effective system of “disclosure controls and procedures” (as defined
in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and is designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Company’s management as
appropriate. The Company has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures were effective as of December
31, 2019.
(oo) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, the Company and the Board are in compliance in all material respects with the provisions of Sarbanes-Oxley and all Exchange Rules that are applicable to them as of the date of this Agreement. Except as disclosed in the Registration
Statement, the General Disclosure Package and the Final Prospectus, the Company maintains a system of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that comply with the requirements of the Exchange
Act and which is sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with U.S. generally accepted accounting principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences, and (v) the Company has made and kept books, records and accounts which, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of assets. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, since the end of the period covered by the Company’s most recent
consolidated financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus, there has been (i) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (ii) no other change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.
17
(pp) The financial statements included or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Final Prospectus, together with the related notes and schedules thereto, present fairly the consolidated financial position of the Company and the Subsidiaries and Affiliated Entities as of the dates indicated and
the consolidated income statement, comprehensive income, changes in equity and cash flows for the periods specified and have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis during the
periods involved; the other financial and operational data contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus are accurately and fairly presented and prepared on a basis
consistent with the financial statements (with respect to such financial data only) and books and records of the Company; the Company and the Covered Entities do not have any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), that are not described in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(qq) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, neither the Company nor any of the Covered Entities has any obligation to provide or has not made the required payment for retirement, healthcare, death or disability benefits to any of the present or past employees of the Company or
any of the Covered Entities, except any failure to make such provision or payment that would not have a Material Adverse Effect.
(rr) No labor dispute with the employees of the Company or any of the Covered Entities exists or,
to the knowledge of the Company, is contemplated, except such disputes that would not have a Material Adverse Effect. The Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of the Company’s or the
Covered Entities’ principal suppliers, third-party logistics providers, IT service providers, payment processors, games developers or contractors that could have a Material Adverse Effect.
(ss) The section entitled “Operating and Financial Review and Prospects –Critical Accounting
Policies” in the Annual Report, as updated by the General Disclosure Package, fairly and accurately describes (i) material accounting policies that the Company believes are the most significant in the portrayal of the Company’s financial condition
and results of operations and that require management’s most difficult, subjective or complex judgments, (ii) material judgments, estimates and uncertainties affecting the application of the foregoing critical accounting policies and (iii) the
likelihood that different amounts would be reported under different conditions or using different assumptions and an explanation thereof (to the extent required to be so disclosed). The Company’s directors and management have reviewed and agreed
with the selection, application and disclosure of the Company’s critical accounting policies as described in the Registration Statement, the General Disclosure Package and the Final Prospectus.
(tt) The Registration Statement, the General Disclosure Package and the Final Prospectus fairly and
accurately describe all material trends, demands, commitments and events known to the Company, that the Company believes would materially affect its liquidity and are reasonably likely to occur. The Registration Statement, the General Disclosure
Package and the Final Prospectus fairly and accurately describe in all material respects all off-balance sheet transactions, arrangements, commitments and obligations of the Company and its Subsidiaries and Affiliated Entities.
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(uu) Except as disclosed in the Registration Statement, the General Disclosure Package and the Final
Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in
connection with the offering contemplated hereby.
(vv) The application of the net proceeds received by the Company in connection with the offering
contemplated hereby as described in the Registration Statement, the General Disclosure Package and the Final Prospectus will not (i) contravene any provision of any laws applicable to the Company or any of the Covered Entities, (ii) contravene the
memorandum and articles of association, charter or other constitutive documents of the Company or any of the Covered Entities, (iii) contravene the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument currently binding upon the Company or any of the Covered Entities, or (iv) contravene or violate the terms or provisions of any governmental authorization applicable to any of the Company or
any of the Covered Entities, except, in the case of (i), (iii) and (iv) above, such contravention or violation that would not have a Material Adverse Effect.
(ww) The Company and the Covered Entities are, and have been, in compliance in all material respects
with any and all applicable laws, rules, regulations, requirements, decisions and orders relating to the protection of human health or safety and the environment (collectively, “Environmental Laws”), and have
received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable environmental laws to conduct their respective businesses (collectively, “Environmental Permits”), except for any failure to receive required permits, licenses or approvals, or actual or potential liability, as would not, individually or in the aggregate, have a Material Adverse Effect; and the Company
and the Covered Entities are not aware of any pending investigation which might reasonably be expected to lead to a claim of such liability, except any such liability as would not, individually or in the aggregate, have a Material Adverse Effect.
(xx) All national, local and foreign tax returns, reports and filings, as applicable, required to be
filed by the Company or any of the Covered Entities through the date hereof have been timely filed except for those tax returns the failure to file which does not and would not be reasonably expected to have a Material Adverse Effect, and all taxes
(whether imposed directly or through withholding), including any interest, additions to tax or penalties applicable thereto due from such entities have been timely paid, other than those being contested in good faith and for which adequate reserves
have been provided or as would not be reasonably expected to, individually or in the aggregate, have a Material Adverse Effect. No tax deficiency has been determined adversely to the Company or any of the Covered Entities which has had (nor does
the Company nor any of the Covered Entities have any notice or knowledge of any tax deficiency which would reasonably be expected to be determined adversely to the Company or the Covered Entities and which would reasonably be expected to have) a
Material Adverse Effect. All local and national governmental tax holidays, exemptions, waivers, financial subsidies, and other local and national tax relief, concessions and preferential treatment enjoyed by the Company or any of the Covered
Entities as described in the Registration Statement, the General Disclosure Package and the Final Prospectus are effective as of the date of such Registration Statement, the General Disclosure Package and the Final Prospectus (other than as
disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus) except for those which do not and would not be reasonably expected to, individually or in the aggregate, have a Material Adverse Effect.
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(yy) Neither the Company nor any of the Subsidiaries and Affiliated Entities, nor any directors or
officers, nor, to the Company’s best knowledge, any employees of the Company or any of the Subsidiaries and Affiliated Entities or, to the Company’s best knowledge, any agents or other representatives of the Company or any of the Subsidiaries and
Affiliated Entities acting on behalf of the Company or any of the Subsidiaries and Affiliated Entities, has (i) used any corporate funds of the Company or any of the Subsidiaries or Affiliated Entities for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or
regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or
party official or candidate for political office; violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws; or (iii) made, offered,
agreed to, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and
its Subsidiaries and Affiliated Entities have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures reasonably designed to promote and ensure compliance in all material respects with all applicable
anti-bribery and anti-corruption laws.
(zz) The operations of the Company and the Subsidiaries and Affiliated Entities are and have at all
times been conducted in compliance in all material respects with all applicable financial recordkeeping and reporting requirements and the applicable anti-money laundering statutes of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries and Affiliated Entities with respect to the Anti-Money Laundering Laws is pending or, to
the Company’s best knowledge, threatened.
(aaa) (i) Neither the Company nor any of the Subsidiaries and Affiliated Entities, nor any directors
or officers, nor, to the best knowledge of the Company, any employee, agent, affiliate, or other representative of the Company or any of the Subsidiaries and Affiliated Entities, is an individual or entity (“Person”)
that is, or is owned 50% or more or controlled by a Person or Persons that:
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(A) are the
subject or target of sanctions administered or enforced by the U.S. government, including but not limited to the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or the U.S.
Department of State, the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”) or
any other relevant sanctions authority (collectively, “Sanctions”), or
(B) are located, organized or resident in a country or territory that is the subject or target of
Sanctions (currently, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Company will not, directly or, to its knowledge, indirectly, use the proceeds of the Offering,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions, or (B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the Offering contemplated hereby, whether as underwriter,
advisor, investor or otherwise).
(iii) The Company and the Subsidiaries and Affiliated Entities have not knowingly engaged in, are not now
knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was in violation of Sanctions.
(bbb) The Registration Statements, the Statutory Prospectus, the Final Prospectus, any Issuer Free
Writing Prospectus and the ADS Registration Statement and the filing of the Registration Statements, the Statutory Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus and the ADS Registration Statement with the Commission have been
duly authorized by and on behalf of the Company, and the Registration Statement and the ADS Registration Statement have been duly executed pursuant to such authorization by and on behalf of the Company.
(ccc) The choice of the laws of the State of New York as the governing law of the Transaction Documents
is a valid choice of law under the laws of the Cayman Islands and will be recognized and upheld by courts in the Cayman Islands. The Company has the power to submit, and pursuant to Section 20 of this Agreement and Section 7.7 of the Deposit
Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York State and United States federal court sitting in the Borough of Manhattan in The City of New York, New York (each, a “New York Court”) and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in any such court; and the Company has the power to designate, appoint and
empower, and pursuant to Section 20 of this Agreement and Section 7.7 of the Deposit Agreement, has legally, validly, effectively and irrevocably designated, appointed and empowered, an authorized agent for service of process in any action arising
out of or relating to the Transaction Documents, the General Disclosure Package, the Registration Statement or the ADS Registration Statement or the offering of the Offered Securities in any New York Court, and service of process in any manner
permitted by applicable laws effected on such authorized agent will be effective to confer valid personal jurisdiction over the Company as provided herein or in the Deposit Agreement.
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(ddd) None of the Company, any of the Subsidiaries and Affiliated Entities or any of their respective
properties, assets or revenues has any right of immunity, under the laws of the Cayman Islands, the United States or the State of New York, from any legal action, suit or proceeding, the giving of any relief in any such legal action, suit or
proceeding, set-off or counterclaim, the jurisdiction of any Cayman, New York State or United States federal court, service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or execution of a judgment,
or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the
Transaction Documents; and, to the extent that the Company, any of the Subsidiaries and Affiliated Entities or any of their respective properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any
such court in which proceedings may at any time be commenced, each of the Company and the Subsidiaries and Affiliated Entities waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as
provided in Section 20 of this Agreement and Section 7.8 of the Deposit Agreement.
(eee) Except as disclosed in the section entitled “Enforceability of
Civil Liabilities” in the Annual Report, the Registration Statement, General Disclosure Package and the Final Prospectus, any final judgment for a fixed sum of money rendered by a New York Court having jurisdiction under its own domestic
laws in respect of any suit, action or proceeding against the Company based upon the Transaction Documents would be recognized and enforced by Cayman courts without reexamining the merits of the case. It is not necessary that the Transaction
Documents, the Registration Statement, the General Disclosure Package, the Final Prospectus or any other document be filed or recorded with any court or other authority in the Cayman Islands.
(fff) The Company has not distributed and will not distribute, on and after the date hereof and prior
to the later of the latest Closing Date and the completion of the Underwriters’ distribution of the Offered Securities, any offering material in connection with the offering and sale of the Offered Securities, other than the preliminary prospectus
supplement dated December 9, 2020, the Final Prospectus, any Issuer Free Writing Prospectus and any General Use Issuer Free Writing Prospectus set forth on Schedule B hereto.
(ggg) Any certificate signed by any officer or director of the Company and delivered to the
Representatives or counsel for the Underwriters on behalf of the Representatives as required or contemplated by this Agreement shall constitute a representation and warranty hereunder by the Company, as to matters covered thereby, to each
Underwriter.
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(hhh) The interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement, General Disclosure Package and the Final Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines
applicable thereto.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of US$191.5875 per ADS (the “Purchase Price”), that number of Firm Securities that bears
the same proportion to the number of Firm Securities to be sold by the Company as the number of Firm Securities set forth in Schedule A hereto opposite the name of such Underwriter bears to the total number of Firm Securities.
The Company will deliver the Firm Securities to or as instructed by the Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company at 10:00 A.M., New York City time, on December 15, 2020, or
at such other time not later than seven full business days thereafter as the Representatives and the Company determine, such time being herein referred to as the “First Closing Date”. For purposes of Rule
15c6-1 under the Exchange Act, the First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Firm Securities sold pursuant to the offering.
In addition, upon written notice from the Representatives given to the Company from time to time, not more than 30 days subsequent to the date of the Final Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the Purchase Price per ADS. The Company agrees to sell to the Underwriters the number of Optional Securities specified in such notice and the Underwriters agree, severally
and not jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased for the account of each Underwriter in the same proportion as the number of Firm Securities set forth opposite such Underwriter’s name bears to the
total number of Firm Securities (subject to adjustment by the Representatives to eliminate fractions). No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by the Representatives to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred to as an “Optional Closing Date,” which may be
the First Closing Date (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be determined by the Representatives but shall be not later than
five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to or as instructed by the Representatives for the
accounts of the several Underwriters in a form reasonably acceptable to the Representatives against payment of the purchase price therefor in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to
the order of the Company.
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4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public upon the terms and conditions set forth in the Final Prospectus. It is
further understood that the Offered Securities are to be offered to the public initially at US$195.00 per ADS (the “Public Offering Price”).
5. Certain Agreements of the Company.
The Company agrees with the several Underwriters that:
(a) The Company has filed or will file each Statutory Prospectus (including the Final Prospectus)
pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the date it is first used or the execution and delivery of this Agreement.
(b) The Company will promptly advise the Representatives of any proposal to amend or supplement at
any time the Registration Statement, the ADS Registration Statement or any Statutory Prospectus at any time prior to the later of (i) completion of the distribution of the Offered Securities within the meaning of the Act and (ii) completion of the
Lock-Up Period (as defined below) and will not effect such amendment or supplement without the Representatives’ consent (which shall not be unreasonably withheld); and the Company will also advise the Representatives promptly of (i) the filing of
any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the
Commission of any stop order proceedings in respect of the Registration Statement or the ADS Registration Statement or, to the Company’s best knowledge, threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or, to the Company’s best knowledge, threatening of any proceedings for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered Securities (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs or condition exists as a result of which the Final Prospectus
as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend the Registration Statement or the ADS Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly
prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon reasonable request of the Representatives, an amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof, unless
stated specifically to constitute a waiver of such condition.
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(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the
Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish, upon the Representatives’ reasonable request, to the Representatives
copies of the Registration Statement (including exhibits filed thereto and documents incorporated by reference therein), the ADS Registration Statement (without exhibits thereto but including documents incorporated by reference therein), any
Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives reasonably request.
(f) The Company will use its reasonable commercial efforts to arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will use its reasonable commercial efforts to continue such qualifications in effect so long as required for the distribution of the
Offered Securities.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to, (i) all fees and expenses in connection with the
preparation and filing of the Registration Statement (including financial statements and exhibits), the ADS Registration Statement, any preliminary prospectus, the General Disclosure Package, the Final Prospectus and any Free Writing Prospectus
prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) the fees, disbursements and expenses of the Company’s counsels and accountants, (iii) all costs and expenses related to the transfer and delivery of the ADSs to the Underwriters, including any
transfer or other taxes payable thereon, (iv) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Securities under state or foreign securities laws and all expenses in
connection with the qualification of the Offered Securities for offer and sale under state or foreign securities laws as provided in Section 5(f) hereof, including filing fees, (v) all filing fees incurred in connection with the review and qualification of the offering of the Offered Securities by the Financial Industry Regulatory Authority, Inc. (“FINRA”), if
applicable, (vii) all costs and expenses incident to listing the Offered Securities on the NYSE and any registration thereof under the Exchange Act, (vi) the costs and expenses of qualifying the Offered Securities for inclusion in the book-entry
settlement system of The Depository Trust Company (“DTC”), (vii) the cost of printing ADRs corresponding to the Offered Securities, (viii) the costs and charges of any transfer agent, registrar or Depositary,
(ix) the costs and expenses of the Company relating to investor presentations or any “road show” undertaken in connection with the marketing of the offering of the Offered Securities, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, expenses associated with hosting investor meetings or luncheons, fees and
expenses of any consultants engaged in connection with any road show or investor presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company, (x) the document production
charges and expenses associated with the printing and delivery of this Agreement, any closing documents contemplated hereunder (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. Each of the Underwriters agrees to reimburse the Company certain costs and expenses pursuant to a side letter to be entered into with the Company on the date hereof, in an amount that is proportionate to the aggregate amount
of Offered Securities set forth opposite the name of such Underwriter in Schedule A hereof.
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(h) The Company will indemnify and hold harmless the Underwriters against any stamp, issuance,
transfer or other similar taxes or duties, if any, on the issue, transfer, delivery or sale to the Underwriters and the initial transfer, delivery or sale by the Underwriters to purchasers of the Offered Securities. All payments to be made by the
Company to the Underwriters under this Agreement shall be made without set-off or counterclaim, and free and clear of, and without deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature and all interest, penalties or similar liabilities with respect thereto, imposed by applicable jurisdictions or by any department, agency or other political subdivision or taxing authority thereof or
therein (“Taxes”). If any Taxes are required by law to be deducted or withheld in connection with any such payment, the Company shall pay such additional amounts as may be necessary such that the net amounts
received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made, except that no additional amounts shall be payable in respect of (a) any Taxes that would not have been
imposed but for a present or former connection between such Underwriters and the applicable jurisdiction (or any department, agency or other political subdivision or taxing authority thereof or therein) other than a connection arising solely from
such Underwriter having executed, delivered or performed its obligations, or received a payment, under this Agreement; (b) any Taxes that would not have been imposed but for the failure of such International Underwriter to comply with any
certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the taxing jurisdiction of the Underwriter if such compliance is required or imposed by law as a precondition to an
exemption from, or reduction in, such Taxes; or (c) any income or franchise tax on the overall net income of such Underwriter.
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(i) For the period specified below (the “Lock-Up Period”),
the Company will not, directly or indirectly, take any of the following actions with respect to its Ordinary Shares or ADSs, or any securities convertible into or exchangeable or exercisable for any of its Ordinary Shares or ADSs (“Lock-Up Securities”): (i) offer, pledge, issue, sell, contract to sell or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or
warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position
or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Act relating to Lock-Up Securities, other than
registration statements on Form S-8 relating to the issuance, vesting, exercise or settlement of equity awards granted or to be granted pursuant to any employee benefit plan described in the Final Prospectus, or publicly disclose the intention to
take any such action, without the prior written consent of the Representatives, except (A) the Offered Securities to be sold hereunder, (B) the issuance of Ordinary Shares or ADSs or the grant of restricted shares, restricted ADSs or options to
purchase Ordinary Shares or ADSs or similar securities under the Company’s employee share option scheme and equity plan, (C) the issuance of Ordinary Shares pursuant to the conversion of preference shares, convertible promissory notes or bonds or
convertible notes outstanding on the date hereof of which the Representatives have been advised in writing or which is otherwise described in the Registration Statement, the General Disclosure Package and the Final Prospectus, and (D) the issuance
of Ordinary Shares or ADSs in connection with any mergers or acquisitions approved by the Board. The Lock-Up Period will commence on the date hereof and continue for 90 days after the date hereof or such earlier date that the Representatives
consent to in writing.
(j) The Company will use its commercially reasonable best efforts to list the Offered Securities
on the NYSE.
(k) The Company will, on or prior to each Closing Date, deposit the Offered Shares with the
Depository in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that Firm Securities or Optional Securities, as the case may be, will be issued by the Depositary against receipt of such
Offered Shares and delivered to the Underwriters at each Closing Date.
(l) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to
in Rule 173(a) under the Act) is (or but for the exemption in Rule 172 would be) required to be delivered under the Act in connection with the offer or sale of the Offered Securities, will file all reports and other documents required to be filed
by the Company with the Commission pursuant to the Exchange Act and the Rules and Regulations within the time periods required thereby.
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(m) The Company agrees that (i) it will not attempt to avoid any judgment in connection with this
Agreement applied or denied to it in a court of competent jurisdiction outside the Cayman Islands, and following the consummation of the offering of the Offered Securities, it will use its best efforts to obtain and maintain all approvals required,
if any, in the Cayman Islands to pay and remit outside the Cayman Islands all dividends declared by the Company and payable on the Ordinary Shares, if any, and (ii) it will use its best efforts to obtain and maintain all approvals required, if any,
in the Cayman Islands for the Company to acquire sufficient foreign exchange for the payment of dividends, if any.
(n) The Company intends to apply the net proceeds to the Company from the sale of the Offered
Securities substantially in the manner set forth under the heading “Use of Proceeds” in the Registration Statement, the General Disclosure Package and the Final Prospectus and to file such reports with the Commission with respect to the sale of the
Offered Securities and the application of the proceeds therefrom as may be required by Rule 463 under the Act. Neither the Company nor the Subsidiaries and Affiliated Entities intends to use any of the proceeds from the sale of the Offered
Securities hereunder to repay any outstanding debt owed as of the date hereof to any affiliate of any Underwriter.
(o) The Company agrees not to, and agrees to cause the Subsidiaries and Affiliated Entities not to,
take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Shares or
the Offered Securities.
(p) The Company agrees not to, at any time at or after the execution of this Agreement, directly
or indirectly, offer or sell any Offered Shares or Offered Securities by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the
meaning of the Act) in connection with the offer or sale of the Offered Shares or the Offered Securities, in each case other than the Final Prospectus.
(q) The Company agrees to promptly notify the Representatives if the Company ceases to be a
Foreign Private Issuer at any time prior to the completion of the distribution of Offered Securities within the meaning of the Act (as notified by the Underwriters to the Company) and 15 days after expiration of the Lock-Up Period.
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent
of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule
433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
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7. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on
each Optional Closing Date will be subject to following conditions precedent:
(A) The representations and warranties of the Company contained in this Agreement and any certificates delivered
pursuant to this Agreement shall be true and correct and as of the Closing Date, and the Company has performed all of its obligations and satisfied all of the conditions hereunder on its part that are required to be performed or satisfied on or
before the Closing Date.
(B) The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof or the ADS Registration or of any part thereof shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, shall be contemplated by the Commission.
(C) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries and Affiliated Entities, taken as a whole, the effect of which makes it, in the
judgment of the Representatives, impracticable to proceed with the offering, sale or delivery of the Offered Securities on the First Closing Date or the Optional Closing Date, as the case may be, on the terms and in the manner contemplated by this
Agreement.
(D) The Representatives shall have received letters, dated, respectively, the date hereof and each Closing Date, of Ernst
& Young LLP, independent public accountants within the meaning of the Securities Laws, substantially in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Final Prospectus; provided that the letter delivered on each Closing Date shall use a “cut-off date” not earlier than three business days prior to such Closing Date.
(E) The Representatives shall have received the opinions and disclosure letter of Skadden, Arps, Slate, Meagher & Flom
LLP, United States counsel for the Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(F) The Representatives shall have received the opinion of Maples and Calder (Hong Kong) LLP, Cayman counsel for the
Company, dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(G) The Representatives shall have received from Davis Polk & Wardwell LLP, United States counsel for the
Underwriters, a disclosure letter and an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(H) The Representatives shall have received from Allen & Overy Legal (Thailand) Co. Limited, Thai counsel for the
Underwriters, an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
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(I) The Representatives shall have received from Tsar & Tsai Law Firm, Taiwanese counsel for the Underwriters, an
opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(J) The Representatives shall have received from Hiswara Bunjamin & Tandjung (in association with Herbert Smith
Freehills), Indonesian counsel for the Underwriters, an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(K) The Representatives shall have received from Allen & Overy Legal (Vietnam) LLC, Vietnamese counsel for the
Underwriters, an opinion, dated such Closing Date, with respect to such matters as the Representatives may require.
(L) The Representatives shall have received from Emmet, Marvin & Martin LLP, counsel for the Depositary, an opinion,
dated such Closing Date, with respect to such matters as the Representatives may require.
(M) The Company shall have furnished or caused to be furnished to the Representatives certificates of a duly authorized
executive officer of the Company, dated such Closing Date, satisfactory to the Representatives, in which such officer shall represent as follows: (a) the representations and warranties of the Company in this Agreement are true and correct; the
Company has performed all of its obligations hereunder on its part that are required to be performed and not otherwise waived by the Representatives at or prior to such Closing Date, and (b) such other matters as the Representatives may reasonably
request.
(N) No stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the Company’s best knowledge, are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission.
(O) On or prior to the date hereof, the Representatives shall have received lock-up letters from each of the directors
and executive officers of the Company, each substantially in the form and substance set forth in Exhibit A.
(P) The Chief Financial Officer of the Company shall have furnished to the Representatives, dated, respectively, the date
hereof and such Closing Date, certificates to the effect that certain operating and financial data disclosed in the Registration Statement, the General Disclosure Package and the Final Disclosure Package have been derived from and verified against
the Company’s accounting and business records, and he has no reason to believe that such data is not true and correct.
(Q) The Deposit Agreement shall be in full force and effect on the Closing Date. The Company and the Depositary shall
have taken all actions necessary to permit the deposit of the Offered Shares and the issuance of the American Depositary Shares representing such Offered Shares in accordance with the Deposit Agreement.
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(R) The Depositary shall have furnished or caused to be furnished to the Representatives at such Closing Date,
confirmation satisfactory to the Representatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, and the execution,
countersignature (if applicable), issuance and delivery of the corresponding ADRs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.
(S) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other
arrangements of the transactions contemplated hereunder.
(T) No Issuer Free Writing Prospectus, Statutory Prospectus or amendment or supplement to the Registration Statement,
the ADS Registration Statement or the Final Prospectus shall have been filed to which the Representatives have objected in writing.
(U) The Offered Securities shall have been approved to be listed on the NYSE.
(V) The Offered Securities shall be eligible for clearance and settlement through the facilities of DTC.
The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives may reasonably request.
If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of
Optional Securities on an Optional Closing Date which is after the First Closing Date, the obligations of the several Underwriters to purchase the relevant Optional Securities shall be deemed terminated by the Company at any time at or prior to the
First Closing Date or such Optional Closing Date, as the case may be, unless as otherwise provided or agreed in writing by the Company and the Representatives, and such termination shall be without liability of any party to any other party except as
provided in Section 9.
Notwithstanding the immediately preceding paragraph, the Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of the First Closing Date, an Optional Closing Date or otherwise.
8. Indemnification and Contribution. (A) The Company will indemnify and hold harmless each Underwriter and its affiliates, such Underwriter’s and affiliates’ directors,
officers, employees and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each an “Indemnified Party”), against any and all
losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other United States federal or state statutory law or regulation, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained or incorporated by reference in any part of the Registration Statement or any amendment
thereof, any Statutory Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Indemnified Party for any legal or other documented expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability,
action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as
such expenses are reasonably incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein.
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(B) Each Underwriter will severally and not jointly indemnify and hold harmless the Company, each of its directors (and
director appointees named in the Registration Statement) and each of its officers who signs a Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(each, an “Underwriter Indemnified Party”) against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, or other United
States federal or state statutory law or regulation, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Registration Statement or any amendment thereof, any Statutory Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or the alleged
omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives specifically for use therein, and will reimburse any documented legal or other expenses
reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter
Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are reasonably incurred.
(C) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under subsection (A) or (B) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall
not relieve it from any liability that it may have under subsection (A) or (B) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that
the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (A) or (B) above. In case any such action is brought against any indemnified party and it
notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigations. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (a) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter
of such action and (b) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of such indemnified party.
32
(D) If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified
party under subsection (A) or (B) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (A) or (B) above (a)
in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (a) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other
in connection with the offering contemplated hereby shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (D) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (D). Notwithstanding the provisions of this subsection (D), no Underwriter shall be required to contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter with respect to the Offered Securities underwritten by it exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (D) to contribute are several in proportion to their respective underwriting obligations and not joint. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this
Section 8(D) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section
8(D).
33
9. Termination. The Underwriters may terminate this Agreement by notice given by the Representatives to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date, (A) trading
generally shall have been suspended or materially limited on, or by, as the case may be, any of the NYSE or the NASDAQ Global Market, (B) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter
market, (C) a material disruption in securities settlement, payment or clearance services in the United States or Singapore shall have occurred, (D) any moratorium on commercial banking activities shall have been declared by United States Federal,
New York State or Singapore authorities or (E) there shall have occurred any outbreak or escalation of hostilities or act of terrorism, or any change in financial markets, currency exchange rates or controls or any calamity or crisis that, in the
discretion of the Representatives, is material and adverse and which, singly or together with any other event specified in this clause (E), makes it, in the discretion of the Representatives, impracticable or inadvisable to proceed with the offer,
sale or delivery of the Offered Securities on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package or the Final Prospectus. If this Agreement shall be
terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform
its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
10. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Offered Securities hereunder on either the First Closing Date or any Optional Closing Date and the aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date, the Representatives may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters so default and the aggregate number of shares of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date and arrangements satisfactory to the Representatives and the Company for
the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after the First Closing Date, this Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior to such termination). As used in this
Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
34
11. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives at: Goldman Sachs (Asia) L.L.C., 68th Floor, Cheung Kong Center, 2 Queen’s Road Central, Hong Kong, Attention: Hubert Yang; and J.P. Morgan Securities
LLC, 383 Madison Avenue, New York, NY 10179, Attention: Equity Syndicate Desk; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 1 Fusionopolis Place, #17-10, Galaxis, Singapore 138522, +65 6270 8100,
Attention: General Counsel; provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the affiliates, officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation. The Representatives will act for the several Underwriters
in connection with the transactions contemplated by this Agreement, and any action under this Agreement taken by the Representatives will be binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and agrees
that:
(A) The Representatives have been retained solely to act as underwriters in connection with the sale of the Offered
Securities and that no fiduciary, advisory or agency relationship between the Company, on the one hand, and the Representatives, on the other, has been created in respect of any of the transactions contemplated by this Agreement or the Final
Prospectus, irrespective of whether the Representatives have advised or are advising the Company on other matters;
(B) The price of the Offered Securities set forth in this Agreement was established by the Company following
discussions and arm’s-length negotiations with the Representatives, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(C) The Company has been advised that the Representatives and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company and that the Representatives have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship;
and
(D) The Company waives, to the fullest extent permitted by law, any claims it may have against the Representatives for
breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Representatives shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary
duty claim on behalf of or in right of the Company, including their respective shareholders, employees or creditors.
35
16. Currency. The obligation of the Company pursuant to this Agreement in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day, following receipt by such Underwriter of any sum adjudged to be so due in
such other currency, on which (and only to the extent that) such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency; if the United States dollars so purchased are less than the sum
originally due to such Underwriter hereunder, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter against such loss. If the United States dollars so purchased are greater than the sum
originally due to such Underwriter hereunder, such Underwriter agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter hereunder.
17. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
18. Applicable Law and Jurisdiction. THIS AGREEMENT AND ANY MATTERS RELATED TO
THIS TRANSACTION SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Each party hereby irrevocably submits to the exclusive jurisdiction of the U.S. federal and state courts in the Borough of Manhattan in The
City of New York (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The parties irrevocably and unconditionally waive, to the fullest extent permitted by law, any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in any U.S. federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waive and agree, to the fullest extent permitted by law, not to plead or claim in any such
court that any such suit or proceeding in any such court has been brought in an inconvenient forum. The Company irrevocably appointed Law Debenture Corporate Services, 801 2nd
Avenue, Suite 403, New York, NY 10017, as its authorized agent in the Borough of Manhattan in the City of New York upon which process may be served in any such suit or proceeding, and agrees that service of process upon such agent, and written
notice of said service to the Company by the person serving the same to the address provided in Section 11, shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company further agrees to
take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of this Agreement. Each party irrevocably waives, to the fullest extent
permitted by law, any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
19. Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such
Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and
obligation, were governed by the laws of the United States or a state of the United States.
36
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this
Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 20:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
37
If the foregoing is in accordance with the Representatives’ understanding of our agreement, kindly sign and return to the Company, one of the counterparts hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters in accordance with its terms.
|
Very truly yours,
|
||
|
SEA LIMITED
|
||
|
By:
|
/s/ Forrest Xiaodong Li |
|
|
Name: Forrest Xiaodong Li
|
||
|
Title: Chairman and Group Chief Executive Officer
|
||
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
| GOLDMAN SACHS (ASIA) L.L.C. | ||
| (Incorporated in Delaware, U.S.A. with limited liability) | ||
|
By:
|
/s/ Andy Tai |
|
|
Name: Andy Tai
|
||
|
Title: Managing Director
|
||
| J.P. MORGAN SECURITIES LLC | ||
|
By:
|
/s/ Ilana Foni |
|
|
Name: Ilana Foni
|
||
|
Title: Vice President
|
||
Acting on behalf of themselves and as the Representatives of the several Underwriters.
SCHEDULE A
|
Underwriter
|
Total Number of
Firm Securities to
be Purchased
|
Number of Optional
Securities to be
Purchased if
Maximum Option
Exercised
|
||||||
|
Goldman Sachs (Asia) L.L.C.
|
9,240,000
|
1,386,000
|
||||||
|
J.P. Morgan Securities LLC
|
3,960,000
|
594,000
|
||||||
|
Total
|
13,200,000
|
1,980,000
|
||||||
A-1
SCHEDULE B
General Use Issuer Free Writing Prospectuses (included in the General Disclosure Package)
1. The Issuer Free Writing Prospectus filed by the Company with the Commission on December 11, 2020
Other Information Included in the General Disclosure Package
1. Pricing Information: US$195.00 per ADS; 13,200,000 Firm Securities; and 1,980,000 Optional Securities
B-1
SCHEDULE B-1
Limited Use Issuer Free Writing Prospectuses
(included in the General Disclosure Package)
None
B-1-1
SCHEDULE C
Covered Subsidiaries of the Company
C-1
SCHEDULE D
Affiliated Entities of the Company
D-1
Exhibit A
Lock-Up Agreement
December 10, 2020
Goldman Sachs (Asia) L.L.C.
68th Floor, Cheung Kong Center
2 Queen’s Road Central
Hong Kong
J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Re: Sea Limited - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as the representatives, propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule A to such agreement (collectively,
the “Underwriters”), with Sea Limited, a company incorporated under the laws of the Cayman Islands (the “Company”), providing for a public offering (the “Offering”) of its American Depositary Shares (the “ADSs”), each of which represents, as of the
date hereof, one Class A ordinary share, par value US$0.0005 per share, of the Company (the “Class A ordinary shares”) pursuant to a Registration Statement on Form F-3 (File No. 333-230021) filed with the Securities and Exchange Commission (the
“SEC”). The Class A ordinary shares, together with the Company’s Class B ordinary shares, are collectively referred to as “Shares.”
In consideration of the agreement by the Underwriters to offer and sell the ADSs, and of other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees that, during the period specified in the following paragraph (the “Lock-Up Period”), the undersigned will not, directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, or file (or participate in the filing of) a registration statement with the SEC in respect of, any ADSs or Shares, or any options or warrants to purchase any ADSs or Shares, or any securities convertible into, exchangeable for
or that represent the right to receive ADSs or Shares, whether now owned or hereinafter acquired, with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the “Undersigned’s
Securities”). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the
Undersigned’s Securities even if such Undersigned’s Securities would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, swap or sale or
grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Securities or with respect to any security that includes or relates to or derives any significant part of its value from such ADSs or
Shares.
Exhibit A-1
The Lock-Up Period will commence on the date of this Lock-Up Agreement and continue for 90 days after the date of the final prospectus supplement (the “Public Offering Date”) used to sell the ADSs
pursuant to the Underwriting Agreement.
Notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Securities (i) in connection with the sale of the Undersigned’s Securities acquired in open market transactions or in the
Offering or after the Public Offering Date, provided that no filing by any party under the United States Securities Exchange Act, as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with such sale during the
Lock-Up Period, (ii) by will or intestacy or otherwise transfer to immediate family members, trusts, family limited partnerships or an entity beneficially owned and controlled by the undersigned, or to a partner, member, stockholder or other equity
holder of the undersigned or, if the undersigned is an investment fund or an investment fund manager, to any investment fund controlled or managed by the undersigned or managed by the same investment fund manager as the undersigned, in each case as
part of a distribution without consideration by the undersigned, provided in each case that the transferee or transferees agree to be bound in writing by the restrictions set forth herein prior to such transfer, no filing by any party (transferor or
transferee) under the Exchange Act shall be required or shall be voluntarily made in connection with such transfer and any such transfer shall not involve a disposition for value, (iii) as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth herein, (iv) with the prior written consent of Goldman Sachs (Asia) L.L.C. and J.P. Morgan Securities LLC, (v) pursuant to a pledge in a bona fide transaction which is outstanding on
the date hereof to a lender to the undersigned and disclosed in writing to the Underwriters on or prior to the date hereof, (vi) pursuant to an order of a court, provided that the recipients of such transfers
agree to be bound in writing by the restrictions set forth herein, or (vii) pursuant to a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act relating to the sale of securities of the Company (each, a “10b5-1 Plan”) in effect
as of the date hereof or (viii) with respect to the Undersigned’s Securities to the extent such Securities may be deemed beneficially owned by the Undersigned as of the date hereof pursuant solely due to any proxy arrangement with Tencent or any
current or former employee of the Company1. Also, this Agreement shall not apply to the establishment of a 10b5-1 Plan after the date hereof for the transfer of ADSs or
Shares, provided that (i) such plan does not provide for the transfer of ADSs or Shares during the Lock-Up Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on
behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of ADSs or Shares may be made under such plan during the Lock-Up Period. For
purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
|
1
|
Only applies to Mr. Forrest Li.
|
Exhibit A-2
Furthermore, the restrictions set forth in this Lock-Up Agreement will not apply to the sale or tender to the Company by the Undersigned of any ADSs or Shares acquired by the exercise of any of the
undersigned’s rights to acquire any ADSs or Shares issued pursuant to the Company’s 2009 Share Incentive Plan, last amended in July 2019, or any other share option or similar equity incentive or compensation plan of the Company (collectively, the
“Equity Incentive Grants”) or withholding by the Company of any such ADSs or Shares for tax withholding purposes in connection with the vesting of Equity Incentive Grants that are subject to a taxable event upon vesting, provided that in each case,
such plan is in effect as of the date of and disclosed in the prospectus supplement for the Offering, and provided further that any ADSs or Shares issued upon exercise of such Equity Incentive Grants shall be subject to the restrictions set forth in
this Lock-Up Agreement. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Undersigned’s Securities except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Offering. The undersigned further understands that
this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors, and assigns. This Lock-Up Agreement shall lapse and become null and void if the Offering shall not have closed on or before
December 30, 2020. This Lock-Up Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
Exhibit A-3
Exhibit 5.1
[Letterhead of Maples and Calder (Hong Kong) LLP]
Our ref VSL/697247-000010/18828134v2
Sea Limited
1 Fusionopolis Place, #17-10, Galaxis
Singapore 138522
15 December 2020
Dear Sirs
Sea Limited
We have acted as Cayman Islands legal advisers to Sea Limited (the "Company") in connection with the Company’s registration statement on Form F-3 filed with the Securities
and Exchange Commission under the U.S. Securities Act of 1933 on 1 March 2019, including all amendments or supplements thereto (the "Registration Statement"), the base prospectus contained in the
Registration Statement, the preliminary prospectus supplement dated 9 December 2020, the final prospectus supplement dated 10 December (collectively, the "Prospectus"), as amended to date relating to the
offering by the Company of up to 15,180,000 American depositary shares (the "ADSs") (including the offer of up to 1,980,000 additional ADSs by the Company to cover over-allotments), each representing one of
the Company's Class A ordinary shares of par value US$0.0005 each (the "Shares"), to be issued and sold by the Company from time to time.
We are furnishing this opinion as Exhibits 5.1 and 23.2 to the Registration Statement.
|
1
|
Documents Reviewed
|
For the purposes of this opinion, we have reviewed only originals, copies or final drafts of the following documents:
|
1.1
|
The certificate of incorporation of the Company dated 8 May 2009 and the certificate of incorporation on change of name of the Company dated 12 April 2017.
|
|
1.2
|
The eighth amended and restated memorandum and articles of association of the Company as conditionally adopted by a special resolution passed on 14 September 2017 and effective immediately prior to the
completion of the Company’s initial public offering of ADSs representing the Shares (the "Memorandum and Articles").
|
|
1.3
|
The minutes of a meeting (the "Meeting") of the directors of the Company held on 15 November 2020 (the "Minutes") and the
written resolutions of the Pricing Committee to the board of directors of the Company dated 10 December 2020 (together with the Minutes, the "Resolutions").
|
|
1.4
|
A certificate from a director of the Company, a copy of which is attached hereto (the "Director's Certificate").
|
|
1.5
|
A certificate of good standing dated 8 December 2020, issued by the Registrar of Companies in the Cayman Islands (the "Certificate of Good Standing").
|
|
1.6
|
The Registration Statement and the Prospectus.
|
|
2
|
Assumptions
|
The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman
Islands which are in force on the date of this opinion letter. In giving these opinions we have relied (without further verification) upon the completeness and accuracy of the Director's Certificate and the Certificate of Good Standing. We have
also relied upon the following assumptions, which we have not independently verified:
|
2.1
|
Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals.
|
|
2.2
|
All signatures, initials and seals are genuine.
|
|
2.3
|
The Company is not the subject of legal, arbitral, administrative or other proceedings in any jurisdiction that would have a material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company.
|
|
2.4
|
The Company will have sufficient authorized capital to effect the issue of the Shares at the time of issuance.
|
|
2.5
|
There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands law) binding on the Company prohibiting or restricting it from entering into and performing its
obligations under the Registration Statement.
|
|
2.6
|
There is nothing under any law (other than the law of the Cayman Islands), which would or might affect the opinions set out below.
|
|
3
|
Opinion
|
Based upon the foregoing and subject to the qualifications set out below and having regard to such legal considerations as we deem relevant, we are of the opinion that:
|
3.1
|
The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing under the laws of the Cayman Islands.
|
|
3.2
|
The authorised share capital of the Company is US$7,500,000 divided into (i) 14,800,000,000 Class A Ordinary shares of a nominal or par value of US$0.0005 each, and (ii) 200,000,000 Class B Ordinary
Shares of a nominal or par value of US$0.0005 each.
|
|
3.3
|
With respect to the Shares, when (i) the issue of such Shares has been recorded in the Company’s register of members (shareholders); and (ii) the subscription price of such Shares (being not less than the
par value of the Shares) has been fully paid in cash or other consideration approved by the Company’s Board, the Shares will be duly authorized, validly issued, fully paid and non-assessable. As a matter of Cayman law, a share is only
issued when it has been entered in the register of members (shareholders).
|
2
|
3.4
|
The statements under the caption "Taxation" in the prospectus forming part of the Registration Statement, to the extent that they constitute statements of Cayman Islands law, are accurate in all material
respects and that such statements constitute our opinion.
|
|
4
|
Qualifications
|
In this opinion the phrase "non-assessable" means, with respect to shares in the Company, that a shareholder shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or calls
on the shares by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to
pierce or lift the corporate veil).
Except as specifically stated herein, we make no comment with respect to any representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this
opinion or otherwise with respect to the commercial terms of the transactions the subject of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the headings "Enforceability of Civil Liabilities", "Taxation" and "Legal Matters"
and elsewhere in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as
amended, or the Rules and Regulations of the Commission thereunder.
Yours faithfully
/s/ Maples and Calder (Hong Kong) LLP
Maples and Calder (Hong Kong) LLP
3
3