GDS : SERIES A PREFERRED SHARE SUBSCRIPTION AGREEMENT - Form 6-K

March 28, 2024 at 06:16 am EDT

SERIES A PREFERRED SHARE SUBSCRIPTION AGREEMENT

among

DigitalLand Holdings Limited,

GDS Holdings Limited

and

The Investors Named Herein

TABLE OF CONTENTS

Page

Article I Definitions and Interpretation	3

Section 1.01	Defined Terms	3
Section 1.02	Interpretation	12

Article II Issuance and Subscription; Closing	12

Section 2.01	Issuance and Subscription	12
Section 2.02	Closing; Subscription Price	12
Section 2.03	Director Appointment	13

Article III Warranties	14

Section 3.01	Warranties of the Company	14
Section 3.02	Warranties of Each Investor	24

Article IV Covenants	27

Section 4.01	Conduct of Business	27
Section 4.02	Use of Proceeds	27
Section 4.03	Access to Information	27
Section 4.04	GDSH Services Agreements	27
Section 4.05	Notice of Certain Events	29
Section 4.06	Reasonable Best Efforts	29
Section 4.07	Investor Financing	29
Section 4.08	Employment Agreements	30

Article V Indemnification	30

Section 5.01	Indemnity	30
Section 5.02	Liability Limitations	31

Article VI Conditions to closing	33

Section 6.01	Conditions to Obligations of Each Investor and the Company	33
Section 6.02	Conditions to Obligation of the Company	33
Section 6.03	Conditions to Obligation of the Investors	33

Article VII Termination	34

Section 7.01	Grounds for Termination	34
Section 7.02	Effect of Termination	34

Article VIII Miscellaneous	35

Section 8.01	Confidentiality	35
Section 8.02	Public Announcements	36
Section 8.03	Binding Effect; Assignability; Benefit	37
Section 8.04	Notices	37
Section 8.05	Waiver; Amendment	38
Section 8.06	Fees and Expenses	38
Section 8.07	No Recourse	38
Section 8.08	Governing Law	38
Section 8.09	Jurisdiction	38
Section 8.10	Specific Enforcement	39
Section 8.11	Exercise of Rights and Remedies	39
Section 8.12	Counterparts; Effectiveness	39
Section 8.13	Entire Agreement	39
Section 8.14	Severability	39
Section 8.15	Exculpation Among the Investors	40
Section 8.16	Further Assurance	40
Section 8.17	Use of English Language	40


Schedules	50

Exhibit A FORM OF SHAREHOLDERS DEED	68

Exhibit B FORM OF RESTATED ARTICLES	69

Exhibit C FORM OF SERVICES AGREEMENT	70

Exhibit D KEY TERMS OF CORPORATE GUARANTEES AGREEMENT	71

Exhibit E KEY TERMS OF IP LICENSE AGREEMENT	72

Exhibit F AGREED PARAMETERS	73

SERIES A PREFERRED SHARE SUBSCRIPTION AGREEMENT

This SERIES A PREFERRED SHARE SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of March       , 2024, is entered into by and among each investor identified on Schedule 2.01 under the heading "Investor" (each, an "Investor" and, collectively, the "Investors"), DigitalLand Holdings Limited, an exempted company incorporated under the laws of the Cayman Islands with limited liability (the "Company") and solely for purposes of Section 4.02, Section 4.04 and Article V and with respect to its obligations therein, GDS Holdings Limited, an exempted company incorporated under the laws of the Cayman Islands with limited liability ("GDSH").

WHEREAS, the Company wishes to issue to each Investor, and each Investor wishes to subscribe for and purchase from the Company, the Subscription Shares (as defined below) for the Subscription Price (as defined below), on the terms and conditions set forth herein; and

WHEREAS, simultaneously with the execution and delivery of this Agreement, as a condition and inducement to the willingness of the Company to enter into this Agreement, certain Investors (as specified in Schedule 2.01) are delivering equity commitment letters (each, an "Equity Commitment Letter" and, collectively, the "Equity Commitment Letters") to the Company.

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

Article I

Definitions and Interpretation

Section 1.01       Defined Terms. The following terms used in this Agreement shall be construed to have the meanings set forth or referenced below:

"Accounts" means (a) the audited, consolidated statements of financial position of the Company as at December 31, 2022, and the audited, consolidated statement of profit or loss and comprehensive income, the audited, consolidated statement of changes in equity and the audited, consolidated statement of cash flows of the Company for the year ended December 31, 2022, and notes to the consolidated financial statements, and (b) the unaudited, reviewed consolidated statements of financial position of the Company as at December 31, 2023, and the unaudited, reviewed consolidated statement of profit or loss and comprehensive income, the unaudited, reviewed consolidated statement of changes in equity and the unaudited, reviewed consolidated statement of cash flows of the Company for the year ended December 31, 2023.

"Action" means any action, suit, claim, charge, complaint, petition, litigation or proceeding, arbitral action, review, governmental inquiry, criminal prosecution, or other investigation.

"Affiliate" means, (a) with respect to any Person that is a natural person, (i) any other Person that is directly or indirectly Controlled by such Person, (ii) such Person's spouse, lineal descendant (whether natural or adopted), brother, sister, or parent, or (iii) any estate, trust or partnership that is established by or for the benefit of such Person or any Person described in sub-clause (ii), in each case, that is directly or indirectly Controlled by such Person, and (b) with respect to any Person that is not a natural person, any other Person that is directly or indirectly Controlling, Controlled by or under common Control with such Person; provided that in each of the foregoing cases, no holder of Company Securities shall be deemed an Affiliate of the Company or any other security holder of the Company, in each case, solely by reason of any investment in the Company or the existence or exercise of any rights or obligations under this Agreement or in respect of the Company Securities held by such security holder insofar as such investment, rights or obligations do not otherwise give rise to any Control in respect of or by the Company or such other security holder of the Company, as applicable.

"Agreed Parameters" has the meaning provided in Section 4.04(a).

"Agreement" has the meaning provided in the preamble of this Agreement and shall refer to this Agreement as may be amended or restated from time to time.

"Anti-Corruption Laws" means all Applicable Law relating to anti-bribery, anti-corruption, record keeping and internal control, including (a) the U.S. Foreign Corrupt Practices Act of 1977 (as amended), (b) the UK Bribery Act of 2010 (as amended), (c) the Prevention of Bribery Ordinance (Chapter 201 of the Laws of Hong Kong) (as amended), (d) the PRC's anti-bribery laws and any rules and regulations, including the Criminal Law, the Anti-Unfair Competition Law and the Interim Provisions on Banning Commercial Bribery, (e) Malaysian Anti-Corruption Commission Act 2009, and (f) legislation applicable to the Group adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

"Anti-Money Laundering Laws" means, with respect to any Person, all financial recordkeeping and reporting requirements under the Applicable Law relating to anti-money laundering and financing of terrorism, including those of the U.S. Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Chapter 615 of the Laws of Hong Kong) (as amended), the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, and the applicable anti-money laundering laws, rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority.

"Applicable Law" means, with respect to any Person, any transnational, domestic, foreign, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule (including stock exchange rules), regulation, Order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is legally binding upon and applicable to such Person.

"Arbitration" has the meaning provided in ‎Section 8.09.

"Balance Sheet Date" means December 31, 2023.

"Board" means the board of directors of the Company.

"Breach" has the meaning provided in Section 3.01(j)(iv).

"Business" means the development and operation of data centers, the leasing of capacity in data centers, and provision of data center colocation and hosting services, which, for the avoidance of doubt, shall not include any cloud business or services (including any GPU leasing services).

"Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in the Cayman Islands, Hong Kong, New York, or Singapore are required or authorized by Applicable Law to be closed.

"Charter Documents" means, as to a Person, such Person's certificate of incorporation, formation or registration (including, if relevant, certificates of change of name), memorandum of association, articles of association or incorporation, charter, by-laws, trust deed, trust instrument, joint venture, limited liability company or shareholders agreement or other equivalent documents, and business license or similar permit, in each case, as each such document may be amended or restated from time to time.

"Closing" has the meaning provided in ‎Section 2.02(a).

"Closing Date" means the date of the Closing.

"Comment Submission Date" has the meaning provided in Section 4.04(b).

"Company" has the meaning provided in the preamble of this Agreement.

"Company Data" has the meaning provided in Section 3.01(j)(iv).

"Company Intellectual Property" means the Owned Intellectual Property and the Licensed Intellectual Property.

"Company Plan" means any plan, program, policy, contract or other written arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, share or share-related awards, other material employee benefits or remuneration of any kind, whether written or unwritten, that is maintained, contributed to or required to be contributed to by any Group Company (and which is legally binding on such Group Company), for the benefit of any current or former directors, officers, employees, individual contractors, or service providers.

"Company Securities" has the meaning provided in ‎Section 3.01(c)(i).

"Company Systems" has the meaning provided in Section 3.01(j)(iv).

"Competitor" shall have the meaning ascribed to such term in the Shareholders Deed.

"Confidential Information" has the meaning provided in ‎Section 8.01(b).

"Consent" means any permit, license, approval, consent, order, authorization or registration, qualification, designation, declaration or filing, obtained or made, or required to be obtained or made.

"Contract" means all written agreements, contracts, leases, licenses, commitments, orders or instruments and all other written and non-written legally binding agreement or arrangement.

"Control" means, with respect to any Persons, the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, or by effective control whether through the ownership of voting securities, by Contract or otherwise, which power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the board of directors (or similar governing body) of such Person; and the terms "Controlled by", "Controlling" and "under common Control with" have the meaning correlative to the foregoing.

"Conversion Shares" means Ordinary Shares issuable upon conversion of the Series A Preferred Shares subscribed for and purchased under this Agreement.

"Corporate Guarantees Agreement" means that certain agreement relating to corporate guarantees, to be entered into by and between the Company and GDSH, effective as of Closing, on the key terms set forth in Exhibit D, and including any amendment or restatement thereof from time to time.

"Covered Persons" has the meaning provided in ‎Section 3.01(r)(i).

"Data Security Obligations" has the meaning provided in Section 3.01(j)(v).

"Demand Notice" has the meaning provided in ‎Section 2.02(c).

"Designated HK Group Company" has the meaning provided in Section 4.04(c).

"Disclosures" means, collectively, (a) the information contained in the online data room hosted on https://share-ex.gds-infra.com/#/home/ by the Company and made available to the Investors as of 11:59 p.m. on March 22, 2024 (the "VDR"), and the information made available to the Investors at the Company's offices in Singapore on March 5 and 6, 2024 (an index of which information is contained in the online data room), (b) the Accounts, (c) the publicly available information from such public searches as set forth in Schedule 1.01(a) as of 11:59 p.m. on March 22, 2024, and (d) the confidential information memorandum and any other presentations or memoranda prepared by or on behalf of the Company in connection with the transactions contemplated hereby as provided in the online data room described in the foregoing clause (a).

"Enforceability Exceptions" has the meaning provided in Section 3.01(b)(i).

"Equity Commitment Letter" has the meaning provided in the recitals of this Agreement.

"Export Control Laws" means all Applicable Law relating to the import export, re-export, or transfer of information, data, goods, and technology, including (a) Council Regulation (EC) No. 428/2009, as amended, (b) the Export Administration Regulations administered by the U.S. Department of Commerce and the International Traffic in Arms Regulations administered by the U.S. Department of State, (c) the United Kingdom Export Control Act 2002, as amended and expanded by the United Kingdom Export Control Order issued in 2008, and (d) any other similar export control laws or restrictions which apply to the Group from time to time.

"Fairly Disclosed" means fairly disclosed with sufficient details as would enable a reasonable investor to make a reasonably informed assessment of the nature and scope of the matter so disclosed.

"Fundamental Warranties" means the warranties contained in ‎Section 3.01(a), ‎Section 3.01(b), ‎Section 3.01(c), ‎Section 3.01(d) and Section 3.01(h).

"GAAP" means generally accepted accounting principles in the U.S. as in effect on the date of this Agreement, applied in a manner consistent with the relevant entity's past practice.

"GDS (HK) Contracts" means the Contracts set forth on Schedule 4.04(c).

"GDSH" has the meaning provided in the preamble of this Agreement.

"GDSH Services Agreements" means the Services Agreement, the Corporate Guarantees Agreement, the IP License Agreement and the Project Transfer Agreement.

"Governmental Authority" means any national, state, provincial, regional, municipal, local, foreign or other governmental, regulatory or administrative authority, department, court, agency or official, including any political subdivision thereof, and including any listing or securities exchange.

"Group" means the Company and its Subsidiaries from time to time, and "Group Company" means any one of them.

"HK1 Site Services Agreement" means the HK1 Site Services Agreement dated July 12, 2021 entered into between GDS (Hong Kong) Limited and EDP I (HK) Limited, as amended from time to time.

"HKIAC" means the Hong Kong International Arbitration Centre.

"HKIAC Rules" has the meaning provided in ‎Section 8.09.

"Hong Kong" means the Hong Kong Special Administrative Region of the PRC.

"Indemnification Threshold" has the meaning provided in ‎Section 5.02(c).

"Initial Subscription Price" has the meaning provided in ‎Section 2.02(b)(i).

"Intellectual Property" means any and all intellectual property or similar proprietary rights throughout the world, including any and all (a) patents, patent rights and applications therefor and reissues, reexaminations, continuations, continuations-in-part, divisions, and patent term extensions thereof ("Patents"), (b) inventions (whether patentable or not), discoveries, improvements, concepts, innovations and industrial models, (c) registered and unregistered copyrights, copyright registrations and applications, mask works and registrations and applications therefor, author's rights and works of authorship (including artwork, software, computer programs, source code, object code and executable code, firmware, development tools, files, records and data, and related documentation), (d) URLs, websites, web pages and any part thereof, and social media handles and accounts, (e) technical information, know-how, trade secrets, drawings, designs, design protocols, specifications, proprietary data, customer lists, databases, proprietary processes, technology, formulae, and algorithms and other intellectual property, (f) trade names, trade dress, trademarks, domain names, service marks, logos, business names, and registrations and applications therefor, (g) the goodwill symbolized, associated with or represented by any of the foregoing, (h) rights to apply for obtain, prosecute, register, maintain and defend any of the foregoing, and (i) rights to sue and otherwise enforce, recover and retain damages costs and attorneys' fees for any part, present and future infringement, misappropriation or other violation of any of the foregoing.

"Investor" has the meaning provided in the preamble of this Agreement.

"Investor Funds" has the meaning provided in Section 3.02(f)(i).

"Investor Indemnified Party" has the meaning provided in Section 5.01(a).

"IP License Agreement" means that certain intellectual property license agreement, to be entered into by and between the Company and GDSH (or one or more of its Affiliate(s)), effective as of Closing, on the key terms set forth in Exhibit E, and including any amendment or restatement thereof from time to time.

"Joint Indemnification Period" has the meaning provided in Section 5.01(c).

"Key Persons" means the key persons listed on Schedule 3.01(m).

"Knowledge" means, when used with respect to a Person that is not a natural person, the knowledge of the directors and officers of such Person (which, in the case of the Company, shall include the Key Persons and the Persons listed on Schedule 1.01(b)), in each case, after reasonable inquiries.

"Lease" means all leases, subleases, licenses, concessions, sale/leaseback arrangements or similar arrangements and other occupancy agreements, pursuant to which any Group Company holds any Leased Real Property.

"Leased Real Property" means the real property leased, subleased, licensed or otherwise occupied by any Group Company as tenant, sublessee, licensee or occupier, together with, to the extent leased by any Group Company, all buildings and other structures, facilities, improvements or fixtures currently or hereafter located thereon.

"Liability" means, with respect to any Person, all debts, obligations, liabilities and commitments of such Person of any nature.

"Licensed Intellectual Property" means any and all Intellectual Property (a) that is owned by a third party and licensed or sublicensed (or purported to be licensed or sublicensed) to any Group Company, or (b) for which any of the Group Companies has obtained a covenant not to be sued.

"Lien" means any claim, charge, easement, encumbrance, lease, covenant, security interest, lien, option, pledge, rights of others, or restriction (whether on voting, sale, transfer, disposition or otherwise), whether imposed by Contract, law, equity or otherwise.

"Long Stop Date" means the date that is one hundred eighty (180) days after the date of this Agreement.

"Loss" or "Losses" has the meaning provided in Section 5.01(a).

"Major Shareholder" has the meaning provided in the Shareholders Deed.

"Material Adverse Effect" means any event, occurrence, effect, change or development that, individually or in the aggregate, have a material adverse effect on (a) the business, condition (financial or otherwise), operating results or assets of the Group Companies, taken as a whole, or (b) the Company's ability to consummate the transactions contemplated hereby, except any adverse effect resulting from (i) general business or economic conditions affecting the industry in which any Group Company operates or generates revenues, (ii) national or international political or social conditions, including international, regional or national hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or act of war, or the occurrence of any sabotage, military or terrorist attack, or natural disasters or force majeure events, (iii) changes in financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (iv) changes in GAAP or other accounting rules or any interpretations or enforcement thereof, (v) changes in Applicable Law, Orders, or other binding directives issued by any Governmental Authority, (vi) the taking of any action by any Group Company at the written request of or with the written consent of any Investor, or as contemplated by and in compliance with this Agreement and the other Transaction Documents, (vii) the failure of any Group Company to meet any of its internal projections (it being understood that the underlying causes of such failure, to the extent not otherwise excluded by this definition, may be taken into account), (viii) any adverse change in or effect on the business of the Group Companies that is cured by or on behalf of the Group Companies before the earlier of the Closing and the date on which this Agreement is terminated, (ix) any epidemic, pandemic or disease outbreak, or (x) the announcement, pendency or consummation of this Agreement, any other Transaction Document or the transactions contemplated hereby (including any reduction in or loss of customers, franchisees, partners, employees, contractors or suppliers of any relevant business); provided that if any effect described in clauses (i), (ii), (iii), (iv), (v) and (ix) has a disproportionate impact on the Group Companies (taken as a whole) relative to other companies operating in the industry or industries in which the Group Companies operate, then the incremental impact of such event shall be taken into account for the purpose of determining whether a Material Adverse Effect has occurred.

"Material Contracts" means any Contract (other than any Transaction Document) to which any Group Company is a party or by which it is bound that is (a) with any customer, distributor or supplier of the Group Companies having an aggregate value, cost or amount in excess of US$6 million per year and that has a remaining term of more than one (1) year, (b) for the sale, lease, license (or covenant not to sue), use, disposition or acquisition of any of the assets (including Intellectual Property) or operating business of the Group Companies, for consideration in excess of US$6 million or with respect to Intellectual Property, where such Intellectual Property is otherwise material to any Group Company, (c) involving the establishment, contribution to, or operation of a partnership, joint venture, alliance or similar entity, or involving a sharing of profits or losses (including joint development and joint marketing Contracts), or any investment in, loan to or acquisition or sale of the securities, equity interests or assets of any Person, in each case for consideration in excess of US$6 million, (d) relating to any collective bargaining agreement or other agreement with a labor organization, trade union, works council or similar bargaining representative, (e) pertaining to the ownership or lease of, title to, use of, or any leasehold or other interest in, any real or personal property (except for personal property leases involving payments of less than US$6 million per year), (f) with or for the benefit of any Governmental Authorities having an aggregate value, cost or amount in excess of US$6 million or that is material to the Business of the Group or outside of the ordinary course of its businesses and operations, (g) containing exclusivity, non-competition, or similar clauses that impair, restrict or impose conditions on any Group Company's right to offer or sell products or services, or any Group Company's ability to compete or to conduct or engage in any Business, (h) involving indebtedness, an extension of credit, a guaranty, surety or assumption of any obligation or any secondary or contingent Liabilities, deed of trust, or the grant of a Lien, in each case in amounts in excess of US$6 million, (i) involving the waiver, compromise, or settlement of any material dispute, claim, litigation or arbitration, (j) dealing with legal or beneficial ownership of any equity interests in any Group Company or the voting power in any Group Company, or (k) between any Group Company and any Related Party.

"Memorandum and Articles" means the memorandum and articles of association of the Company, as in effect from time to time.

"MNPI" has the meaning provided in Section 8.01(c).

"Non-Recourse Persons" has the meaning provided in Section 8.07.

"Order" means an order, injunction, judgment, decree or demand issued by a court or any other Governmental Authority.

"Ordinary Shares" means the ordinary shares of the Company with a par value of US$0.00005 each.

"Owned Intellectual Property" means all Intellectual Property owned by the Group Companies, whether registrable or otherwise.

"Owned Real Properties" means all land, together with all buildings, structures, improvements and fixtures located thereon, owned by any Group Company.

"Per Claim Threshold" has the meaning provided in Section 5.02(c).

"Permitted Liens" means (a) statutory liens for current Taxes, special assessments or other governmental or quasi-governmental charges not yet delinquent or the amount or validity of which is being contested in good faith by appropriate proceedings, (b) mechanics', materialmen's, carriers', workers', warehousemen's, repairers' and similar statutory liens arising or incurred in the ordinary course of business, (c) zoning, entitlement, building and other land use regulations imposed by any Governmental Authority, (d) covenants, conditions, restrictions, easements and other similar matters of record affecting title to any real property which do not materially impair the occupancy or use of such real property for the purposes for which it is currently used or proposed to be used in connection with the Group Companies' businesses, (e) matters which would be disclosed by an inspection or accurate survey of each parcel of real property, (f) liens incurred or deposits or pledges made in connection with, or to secure payment of, worker's compensation, unemployment insurance, old age pension programs, social security, retirement and similar laws, (g) purchase money liens and liens securing rental payments under capital lease arrangements, (h) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business and (i) liens to secure landlords, lessors or renters under leases or rental agreements in the ordinary course of business and which are immaterial to the Business of any Group Company.

"Person" means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.

"PFIC" has the meaning provided in Section 3.01(n)(xiv).

"PRC" means the People's Republic of China and, for the purposes of this Agreement, shall not include Hong Kong, Macau Special Administrative Region, or Taiwan.

"Pre-Assignment Period" means the period from the date hereof until the date upon which all GDS (HK) Contracts have been assigned to the Designated HK Group Company in accordance with Section 4.04(c).

"Procedural Requirements" has the meaning provided in Section 4.04(a).

"Proceeds" has the meaning provided in Section 4.02.

"Project Transfer Agreement" means that certain Project Transfer Agreement, dated March 26, 2024, by and between GDSH and the Company, including any amendment or restatement thereof from time to time.

"Public Listing" shall have the meaning ascribed to such term in the Shareholders Deed.

"Public Official" means any public or elected official or officer, employee (regardless of rank), or person acting in an official capacity on behalf of a national, provincial, or local government, including a department, agency, instrumentality, state-owned or state-controlled company, public international organization (such as the United Nations or World Bank), or non-U.S. political party, non-U.S. party official or any candidate for political office. Officers, employees (regardless of rank), or persons acting on behalf of an entity that is directly financed in large measure through public appropriations or has its key officers and directors appointed by a government should also be considered "Public Officials".

"Related Party" means any Affiliate, officer, or director of any Group Company, any holder of any Company Security or Subsidiary Security, and any Affiliate or associate of any of the foregoing. For purposes of this definition, "associate" of a given Person means (a) a corporation or organization of which such given Person is an officer or partner or is, directly or indirectly, the beneficial owner of thirty percent (30%) or more of any class of equity securities, (b) any trust or other estate in which such given Person has a substantial beneficial interest or as to which such given Person serves as trustee or in a similar capacity, or (c) such Person's spouse and lineal descendants (whether natural or adopted), brother, sister and/or parent.

"Relevant Investors" has the meaning provided in Section 4.04(b).

"Remaining Subscription Price" has the meaning provided in Section 2.02(c).

"Representatives" means, with respect to any Person, its Affiliates and the directors, officers, employees, limited or general partners, shareholders, financial advisors, auditors, accountants, consultants, and legal counsel of such Person or its Affiliates.

"Restated Articles" means the amended and restated memorandum and articles of association of the Company, in the form attached as Exhibit B.

"Sanctions" means those trade, economic and financial sanctions laws, regulations, embargoes, restricted party lists and other restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (a) the U.S. (including by the Department of the Treasury's Office of Foreign Assets Control), (b) the European Union and enforced by its member states (including under Council Regulation (EC) No. 194/2008), (c) the United Nations, (d) His Majesty's Treasury, or (e) other similar governmental bodies with regulatory authority over the Company from time to time.

"Securities Act" has the meaning provided in Section 3.02(c).

"Series A Preferred Shares" means the Series A preferred shares of the Company with a par value of US$0.00005 each.

"Services Agreement" means that certain services agreement, to be entered into by and between GDSH and the Company, effective as of Closing, in the form attached as Exhibit C, and including any amendment or restatement thereof from time to time.

"Shareholders Deed" means the shareholders deed of the Company to be entered into by and among the parties named therein at Closing, in the form attached as Exhibit A.

"Specified Covenants" has the meaning provided in Section 5.02(a).

"Subscription Price" means, in respect of each Investor, the sum of the Initial Subscription Price and the Remaining Subscription Price.

"Subscription Shares" has the meaning provided in Section 2.01.

"Subsidiary" means, with respect to any Person, any corporation, partnership, limited liability company, association, trust or other entity or organization, whether incorporated or unincorporated, which is Controlled by such Person.

"Subsidiary Securities" has the meaning provided in Section 3.01(c)(iii).

"Tax", "Taxes" or "Taxation" means (a) any national, state, provincial, regional, municipal, local, foreign or other taxes, charges, fees, levies, duties or other assessments imposed by any Tax Authority, including all net income (including enterprise income tax and individual income withholding tax), turnover (including value-added tax, business tax, and consumption tax), resource (including urban and township land use tax), special purpose (including land value-added tax, urban maintenance and construction tax, and additional education fees), property (including urban real estate tax and land use fees), documentation (including stamp duty and deed tax), filing, recording, social insurance (including pension, medical, unemployment, housing, and other social insurance withholding), tariffs (including import duty and import value-added tax), and estimated and provisional taxes, charges, fees, levies, or other assessments of any kind whatsoever, and (b) all interest, penalties (administrative, civil or criminal) or additional amounts imposed by any Tax Authority in connection with any item described in clause (a) above.

"Tax Authority" means any Governmental Authority responsible for the imposition, collection or administration of any Tax.

"Tax Returns" means any return, declaration, report, statement, election, estimate, claim for refund, claim for extension, designation, information return or other document (including any schedule or attachment thereto, or any related or supporting information) filed or required to be filed with any Tax Authority.

"Tax Sharing Agreement" means any agreement or arrangement (whether or not written) entered into prior to the Closing binding any Group Company that provide for the allocation, apportionment, sharing or assignment of any Tax Liability or benefit, or the transfer or assignment of income, revenues, receipts, or gains for the purpose of determining any Person's Tax Liability.

"Third-Party Payments" has the meaning provided in Section 5.02(i).

"Transaction Documents" means this Agreement, the Shareholders Deed, the Restated Articles, the GDSH Services Agreements, and the Equity Commitment Letters.

"Transaction Information" has the meaning provided in Section 8.01(a).

"Unpaid Subscription Shares" has the meaning provided in Section 2.02(b)(ii).

"US$" means the U.S. Dollars, the lawful currency of the U.S.

"U.S." means the United States of America.

Section 1.02       Interpretation. The words "hereof", "herein" and "hereunder" and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation", whether or not they are in fact followed by those words or words of like import. "Writing", "written" and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, all such amendments, modifications or supplements must also be listed in the appropriate schedule. References to any law include all rules and regulations promulgated thereunder and as amended, modified or supplemented from time to time. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively, and any time of day is a reference to Singapore time (unless otherwise specified), and if the date on or by which something must be done is not a Business Day, that thing must be done on or by the Business Day immediately following such day.

Article II

Issuance and Subscription; Closing

Section 2.01       Issuance and Subscription. Subject to the terms and conditions of this Agreement, at the Closing (as defined below), each Investor severally and not jointly agrees to subscribe for and purchase, and the Company agrees to allot and issue to each Investor, the number of Series A Preferred Shares identified on Schedule 2.01 under the heading "Total Subscription Shares" (collectively, the "Subscription Shares" and, in respect of each Investor, such Investor's "Subscription Shares") across from such Investor's name.

Section 2.02       Closing; Subscription Price.

(a)            Subject to Section 2.02(b)(i), the closing of the issuance and subscription of the Subscription Shares (the "Closing") with respect to each Investor shall take place remotely via the electronic exchange of documents and signatures, as soon as possible after the execution of this Agreement, but in no event later than fifteen (15) Business Days after the satisfaction or waiver of each condition to the Closing as set forth in Section 6.01, Section 6.02 and Section 6.03, or at such other time and place as the Company and such Investor may agree upon in writing. For the avoidance of doubt, the Company and each Investor shall be entitled and required to consummate the Closing with respect to its Subscription Shares subject to the terms and conditions of this Agreement regardless of whether or not the Closing occurs with respect to any other Investor.

(b)            At the Closing:

(i)            each Investor shall, severally and not jointly, (x) deliver to the Company a counterpart to the Transaction Documents to which it is a party duly executed by it, and (y) pay, or cause to be paid, to the Company an amount in US$ equal to the amount set forth in Schedule 2.01 under the heading "Initial Subscription Price" across from such Investor's name (in respect of each Investor, such Investor's "Initial Subscription Price"), by wire transfer of immediately available funds to the bank account of the Company set forth in Schedule 2.02(b)(i);

(ii)            the Company shall, against receipt of such payment, deliver to each Investor (A) a certified true copy of the Company's register of members, showing such Investor as the registered holder of its Subscription Shares (for the avoidance of doubt, each Investor's unpaid Subscription Shares set forth in Schedule 2.01 under the heading "Unpaid Subscription Shares" (such Investor's "Unpaid Subscription Shares") shall be annotated as unpaid in such register of members), (B) with respect to each of the Investors that will constitute a Major Shareholder upon the Closing, subject to its timely compliance with Section 2.03, a certified true copy of the Company's register of directors, evidencing the appointment of the directors appointed by such Investor to the Board pursuant to the Shareholders Deed, (C) a counterpart to each of the Transaction Documents duly executed by each party thereto other than such Investor, (D) a copy of the resolutions of the shareholders of the Company and a copy of the resolutions of the Board duly adopting the Restated Articles and duly approving the Transaction Documents and the transactions contemplated thereby, with a copy of the Restated Articles filed with and stamped by the Registrar of Companies in the Cayman Islands to be delivered to each Investor within fifteen (15) Business Days following the Closing, and (E) a USB or disc entitled "Project Sunrise Disclosure Documents" containing all documents contained in the online data room as of March 15, 2024; and

(c)            the Company shall, at any time within twelve (12) months following the Closing and upon approval of the Board, require each Investor by written notice (the "Demand Notice") to, and each Investor shall, within fifteen (15) Business Days following its receipt of the Demand Notice (or, if no such Demand Notice is issued within twelve (12) months from the Closing, within fifteen (15) Business Days after the first (1^st) anniversary of the Closing), pay, or cause to be paid, to the Company an amount in US$ equal to the amount set forth in Schedule 2.01 under the heading "Remaining Subscription Price" across from such Investor's name (in respect of each Investor, such Investor's "Remaining Subscription Price") by wire transfer of immediately available funds to the bank account of the Company as set forth in the Demand Notice and the Company shall, against receipt of such payment, deliver to such Investor a certified true copy of the Company's register of members, showing such Investor's Unpaid Subscription Shares as fully paid. In the event that any Investor fails to pay its Remaining Subscription Price in accordance with this Section 2.02(c) and such failure is not cured by such Investor within fifteen (15) Business Days following the date on which such payment should have been made, at the election of the Company in its sole discretion, such Investor's Unpaid Subscription Shares shall be deemed forfeited and thereupon cancelled by the Company, and all rights pertaining to such Unpaid Subscription Shares shall automatically and immediately terminate ab initio as of the fifteenth (15^th) Business Day following the first (1^st) anniversary of the Closing.

Section 2.03       Director Appointment. Upon receipt of a duly executed consent to act as a director from, and satisfaction of any required "know your customer" information requests from the Company's corporate secretary by, each of the Investors that will constitute a Major Shareholder upon the Closing, no later than five (5) Business Days prior to the Closing (provided that the Company shall deliver the written request of such information to each such Investor no later than ten (10) Business Days prior to the Closing), the Company shall appoint the nominees of each such Investor to the Board and deliver to each such Investor a copy of the Company's register of directors reflecting the same, certified by the Company's corporate secretary as of the Closing Date.

Article III

Warranties

Section 3.01       Warranties of the Company. The Company hereby represents and warrants to each Investor that, except as Fairly Disclosed in the Disclosures, as of the date hereof and as of the Closing Date (except for such representations and warranties that speak as of a specified date, in which case, as of such specified date), each of the following statements is true and correct:

(a)            Organization; Good Standing; Corporate Power and Qualification. Each Group Company is duly organized, validly existing and in good standing (or equivalent status) under, and by virtue of, the laws of the jurisdiction of its incorporation. No Order has been made or petition presented or resolution passed for the winding up, liquidation or dissolution of any Group Company and no distress, execution or other process has been levied on any Group Company's properties and assets. Each Group Company has all requisite power and authority to own or lease and operate its properties and assets and to carry on the Business as presently conducted. Each Group Company is duly qualified or authorized to do business and is in good standing (or equivalent status) in each other jurisdiction where the ownership, lease or operation of its assets or properties or conduct of its business requires, except where the failure to be so qualified or authorized would not reasonably be expected to have a Material Adverse Effect.

(b)            Authorization and No Conflicts.

(i)            Each Group Company has all requisite power and authority to execute and deliver the Transaction Documents to which it is a party and to carry out and perform its obligations thereunder. All corporate actions on the part of each Group Company, its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement and the other Transaction Documents, the performance of all obligations of each Group Company hereunder and thereunder, including the authorization, issuance, reservation for issuance and delivery of the Subscription Shares and of the Conversion Shares, the authorization of the transactions contemplated hereby, have been taken or will be taken prior to the Closing. This Agreement has been duly executed and delivered by the Company and constitutes valid and legally binding obligations of the Company, and each of the other Transaction Documents, when executed and delivered by any Group Company, will constitute valid and legally binding obligations of such Group Company, in each case enforceable against such Group Company in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors' rights generally (collectively, the "Enforceability Exceptions").

(ii)            Except as otherwise expressly contemplated under this Agreement, (A) no filing with, and no Consent of, any Governmental Authority is necessary on the part of any Group Company for the valid and lawful authorization, execution, delivery and performance of this Agreement and the other Transaction Documents by any Group Company or the consummation by such Group Company of the transactions contemplated by this Agreement and the other Transaction Documents; and (B) neither the execution, delivery or performance of this Agreement or any other Transaction Document by any Group Company nor the consummation by such Group Company of the transactions contemplated hereby or thereby will (x) conflict with or result in a violation of any provision of (in the case of the Company) the Memorandum and Articles or (in the case of any other Group Company) the Charter Document of the relevant Group Company, (y) conflict with or result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of any Group Company pursuant to, any Contract to which such Group Company is a party or by which such Group Company or any property or asset of any Group Company is bound or affected, or (z) conflict with or violate any Applicable Law in respect of any Group Company or any of any Group Company's properties or assets, except in each case of the foregoing clauses (y) and (z), where such conflict, violation, breach, event of default or other result described in such clauses would not reasonably be expected to have a Material Adverse Effect.

(i)            As of the date hereof, the authorized share capital of the Company is US$50,000.0001, consisting of 1,000,000,002 Ordinary Shares, all of which are issued and outstanding. Immediately prior to the Closing, the authorized share capital of the Company will be US$50,000.0001, consisting of 941,300,002 Ordinary Shares, 75,000,000 of which will be issued and outstanding, and 58,700,000 Series A Preferred Shares, none of which will be issued and outstanding prior to the Closing. All outstanding Company Securities have been duly authorized and validly issued, and are fully paid and non-assessable, free and clear of all Liens (except as provided under Applicable Law and the Transaction Documents). Immediately prior to the Closing, except as set forth in Schedule 3.01(c)(i), there are no outstanding (A) shares of share capital or other equity securities of the Company, including Ordinary Shares, (B) securities convertible into or exchangeable for shares of share capital or other equity securities of the Company, (C) options, warrants or other rights to acquire shares of share capital or other equity securities of the Company, (D) other security into which any of the securities described in clauses (A) to (C) above may hereafter be converted or exchanged, or (E) other obligation of or ownership interests in the Company to issue any shares of share capital or equity securities of the Company or securities convertible into or exchangeable for shares of share capital or equity securities of the Company (the items in clauses (A) to (E) above being referred to collectively as the "Company Securities"). There are no outstanding obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Company Securities except as contemplated by the Shareholders Deed.

(ii)            Assuming Closing with all Investors occurs as set forth herein, immediately after the Closing, the share capitalization of the Company on a fully-diluted and as-converted basis will be as set forth in Schedule 3.01(c)(ii).

(iii)            All of the outstanding Subsidiary Securities have been duly authorized and validly issued, are fully paid and non-assessable, and are owned by the Company, directly or indirectly, free and clear of any Lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such share capital or other equity securities) (except for any restrictions on transfer under Applicable Law or the Transaction Documents). No allotment, issue or transfer of the Subsidiary Securities has been made in contravention of the Charter Document of any Subsidiary or Applicable Law. Schedule 3.01(c)(iii) sets forth the capitalization of each of the Company's Subsidiaries, including details regarding the direct shareholder(s) of each such Subsidiary and the amount of Subsidiary Securities owned. Except as set forth in Schedule 3.01(c)(iii), there are no outstanding (A) share capital or other equity securities of any Subsidiary, (B) securities of the Company or any Subsidiary convertible into or exchangeable for share capital or other equity securities of any Subsidiary, (C) options, warrants, pre-emptive rights, rights of first refusal or other contracts, agreements or rights to acquire from the Company or any Subsidiary, share capital or other equity securities of any Subsidiary, (D) other security into which any of the securities described in clauses (A) to (C) above may hereafter be converted or exchanged, or (E) other obligation of or ownership interests in the Company or any Subsidiary to issue any share capital or equity securities of any Subsidiary or securities convertible into or exchangeable for share capital or equity securities of any Subsidiary (the items in ‎(A) to ‎(E) above being referred to collectively as the "Subsidiary Securities"). There are no outstanding obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. No dividends or other distribution of profits have been declared, made or paid by any Subsidiary since the Balance Sheet Date.

(d)            Title to Shares Issued. Each Investor's Subscription Shares, when issued, subscribed and paid for in accordance with this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid and non-assessable, free from any Lien (except for any restrictions on transfer under Applicable Law or the Transaction Documents). Subject to Section 3.01(y), each Investor's Subscription Shares will be issued in compliance with all applicable securities laws. The Conversion Shares have been duly reserved for issuance, and upon issuance in accordance with the terms of the Restated Articles, will be duly and validly issued, fully paid and non-assessable, free from any Lien (except for any restrictions on transfer under applicable securities laws, this Agreement, the Shareholders Deed or the Restated Articles).

(e)            Litigation. There are no Actions pending or, to the Knowledge of the Company, threatened against or affecting the Group Companies, before or by any Governmental Authority, that have or would reasonably be expected to have a Material Adverse Effect.

(f)            Financial Statements. The Accounts present fairly the consolidated financial position, cash flows and results of operations of the Group Companies in all material respects as of the time and for the period referred to therein, and were prepared in accordance with GAAP applied on a consistent basis, except as to the unaudited Accounts, for the omission of notes thereto and normal year-end audit adjustments.

(g)            Books and Records. The statutory books, minute books, books of account and other records of the Group, in all material respects, (i) are up to date and have been maintained in accordance with Applicable Law and generally accepted accounting practices stipulated under Applicable Law on a proper and consistent basis, (ii) comprise complete and accurate records of all information required to be recorded therein, (iii) are in the possession or under the control of the Group together with all documents of title and executed copies of all existing agreements to which a Group Company is a party, and (iv) are properly filed and lodged with the relevant Governmental Authority in compliance with Applicable Law.

(h)            Changes since the Balance Sheet Date. Since the Balance Sheet Date, (i) the business of the Company and its Subsidiaries has been conducted in all material respects in the ordinary course consistent with past practices, and (ii) there has not been any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have a Material Adverse Effect.

(i)            Real Properties and Assets.

(i)            Schedule 3.01(i)(i) sets forth the owner, address and floor area of each Owned Real Property. Each of the Group Companies has good and marketable title to all of its Owned Real Properties, free and clear of all Liens (other than Permitted Liens), and the land use rights relating to the Owned Real Property have been obtained from competent Governmental Authorities and all amounts (including, if applicable, land grant premiums) required under Applicable Law in connection with securing such title or land use rights have been paid in full, in each case, in all material respects.

(ii)            The Group Companies have, in all material respects, duly complied with the terms and conditions of, and all of their obligations under, the relevant land use rights contract or real property purchase contract in relation to any Owned Real Property. With respect to each Owned Real Property, none of the Group Companies has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof, other than those that are not material to such Owned Real Property. There are no circumstances, to the Knowledge of the Company, which would entitle the competent Governmental Authorities to exercise any powers of re-entry or taking possession of the Owned Real Property. Except as would not reasonably be expected to have a Material Adverse Effect, (A) each Owned Real Property is in compliance with all Applicable Law, including such laws in respect of land expropriation, land bidding, city planning and zoning, construction design, building construction, and construction inspection and acceptance; (B) each Owned Real Property is permitted to be used for the Business that the applicable Group Company currently operates therein, and each Group Company is permitted to conduct its Business in the relevant Owned Real Property; (C) none of the Owned Real Property has any material defect in title or restriction on use which may decrease its ability to be used in the Business as currently conducted by the applicable Group Company; and (D) there are no outstanding rents, rates and other outgoing payable by the applicable Group Company to the competent Governmental Authorities in respect of any Owned Real Property.

(iii)            Schedule 3.01(i)(iii) sets forth the address of each Leased Real Property that is material to the Business of the Group (which, for the avoidance of doubt, shall include all Leases for data centers but not Leases for office space). Each of the Group Companies has a sole and exclusive, valid and enforceable leasehold interest in all of its Leased Real Property, free and clear of all Liens (other than Permitted Liens and subject to the Enforceability Exceptions). With respect to such Leases that are material to the Business of the Group: (A) such Lease is legal, valid, binding, enforceable and in full force and effect (subject to the Enforceability Exceptions); (B) the possession, use and occupancy and quiet enjoyment of the Leased Real Property by the applicable Group Company under such Lease has not been disturbed in any material respect and there are no material disputes with respect to such Lease; (C) none of the Group Companies has subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof; (D) none of the Group Companies has collaterally assigned or granted any other security interest in such Lease or any interest therein in any material respects; and (E) neither any Group Company nor any other party to such Lease is in material breach or material default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a material breach or material default, or permit the termination, modification or acceleration of rent under such Lease.

(iv)            None of the Group Companies has received written notice of the existence of any outstanding Order, and, to the Knowledge of the Company, there is no such Order threatened, relating to the ownership, lease, use, occupancy or operation by any Person of any Owned Real Property or Leased Real Property, in each case, that is material to such Owned Real Property or Leased Real Property.

(v)            Except as would not reasonably be expected to have a Material Adverse Effect, each of the Group Companies has good title to, or a valid leasehold interest in, as applicable, all personal property and assets used in its Business, free and clear of any and all Liens other than Permitted Liens, and such personal property is in good operating condition and repair in all material respects.

(vi)            (A) Each of the Group Companies has obtained the relevant Consents of any Governmental Authority for each of the Owned Real Properties and Leased Real Properties as required under Applicable Law and is in compliance with all terms and conditions of such Consents, and (B) each Consent of any Governmental Authority is in force and will not be revoked, suspended, cancelled, varied or not renewed as a result of the execution or performance of this Agreement or the consummation of the transactions contemplated by the Transaction Documents, in each case of the foregoing sub-clauses (A) and (B), except where any such Consents would not in the aggregate be expected to materially and adversely impact the Business of the Group as presently conducted.

(j)            Intellectual Property and Data Privacy.

(i)            The Group Companies solely and exclusively own all rights, title, and interest in and to each item of Owned Intellectual Property, free and clear of any Liens (other than Permitted Liens) and the Group Companies have a valid right or license to use all Licensed Intellectual Property. The Group Companies own or have the adequate right to use all Intellectual Property used or purported to be used in connection with, or otherwise necessary to conduct, the Group's Business as presently conducted without any infringement, misappropriation or violation of the Intellectual Property of any Person in any material respect. Each Group Company has taken all security measures that are commercially reasonable in accordance with standard industry practice in order to protect the secrecy, confidentiality and value of the Company Intellectual Property. Neither the conduct of the Business of the Group, nor any product or service marketed, sold or provided (or proposed to be marketed, sold or provided) by any Group Company, has, within the three (3) years preceding the date of this Agreement, infringed upon, misappropriated or otherwise violated, or is infringing upon, misappropriating or otherwise violating, the Intellectual Property rights of any other Person.

(ii)            No claims, proceedings or legal actions are pending, or, to the Knowledge of the Company, threatened against, any Group Company, and none of the Group Companies has received any communications (A) alleging that any Group Company has infringed upon, misappropriated or otherwise violated or, by conducting the Group's Business as proposed, would infringe upon, misappropriate or otherwise violate any Intellectual Property rights of any other Person, nor, to the Knowledge of the Company, is there any reasonable basis therefor, or (B) challenging or seeking to deny, revoke or limit the Group Companies' rights in any Owned Intellectual Property. Each employee and consultant of the Group Companies involved in the development of any Owned Intellectual Property for, or on behalf of, any of the Group Companies has executed intellectual property assignment or work for hire agreements or other written Contracts that presently assign to the applicable Group Company all such Person's right, title and interest in and to such Intellectual Property or such Intellectual Property has otherwise vested in a Group Company by operation of law. To the Knowledge of the Company, no such agreements have been breached or otherwise violated.

(iii)            As of the date of this Agreement, no Owned Intellectual Property and, to the Knowledge of the Company, no Licensed Intellectual Property, is subject to any outstanding Order that (A) restricts the use, transfer or license thereof, or the making, using, sale, or offering for sale of any Group Company's products or services, by any Group Company, or (B) may affect the validity, use or enforceability of such Intellectual Property. There are no proceedings or claims pending or served, instituted or asserted by any Group Company in which any Group Company alleges that any Person has infringed upon, misappropriated or otherwise violated, or is infringing upon, misappropriating or otherwise violating, the Company Intellectual Property, and, to the Knowledge of the Company, no Person has infringed upon, misappropriated or otherwise violated, or is infringing upon, misappropriating or otherwise violating the rights of any Group Company in any Company Intellectual Property. No Owned Intellectual Property and, to the Knowledge of the Company, no Licensed Intellectual Property, has been adjudged invalid or unenforceable in whole or in part, and, to the Knowledge of the Company, all such Company Intellectual Property is valid, subsisting and enforceable. The Group Companies have taken commercially reasonable actions necessary to enforce, maintain, protect and defend their rights in the Owned Intellectual Property, including any and all commercially reasonable actions necessary to protect their rights in any and all Owned Intellectual Property the value of which is contingent upon maintaining the confidentiality thereof.

(iv)            The Group Companies solely and exclusively own, or otherwise have or will have at the Closing, the sufficient right or license to use the software, hardware, firmware, middleware, servers, networks, interfaces databases, computer equipment, data communications lines and all other information technology owned or used by the Group Companies and used in the Group's Business, including all associated documentation (together, the "Company Systems"). The Company Systems are adequate for the Group's Business and operate and perform in accordance with their documentation and functional specifications and in a manner that permits the Group Companies to conduct the Group's Business, free and clear of (A) all material bugs, errors and defects, and (B) all Trojan horses, time bombs, malware and other corruptants. The Group Companies have implemented and maintained commercially reasonable controls, policies, procedures and safeguards consistent with customary industry practices to monitor, maintain and protect their information and the integrity, continuous operation, redundancy and security of all Company Systems and data (including any personal, personally identifiable, household, sensitive, confidential or regulated data) used in connection with the Group's Business ("Company Data"). To the Knowledge of the Company, there has been no material breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to any Company Systems or Company Data ("Breach"). No Group Company has been notified of any event or condition, and, to the Knowledge of the Company, there is no event or condition, that would reasonably be expected to result in any such Breach.

(v)            The Group Companies have complied, and are presently in compliance, in all material respects, with all internal and external privacy and security policies, contractual obligations, binding industry standards, Applicable Laws and any other applicable legal obligations relating to privacy, data protection or the collection, use or other processing of data (including any personal, personally identifiable, household, sensitive, confidential or regulated data) by or on behalf of the Group ("Data Security Obligations"). No Group Company has received any notification of or complaint regarding any non-compliance by any Group Company with any Data Security Obligation. No claims, proceedings or legal actions are pending, or, to the Knowledge of the Company, threatened against, any Group Company, alleging non-compliance with any Data Security Obligation and, to the Knowledge of the Company, there are no pending investigations by any Governmental Authority relating to the compliance of any Group Company with any Data Security Obligations.

(k)            Material Contracts.

(i)             Except as set forth in Schedule 3.01(k)(i), none of the Group Companies is a party to or bound by any other Material Contracts.

(ii)            To the Knowledge of the Company, none of the Material Contracts has been terminated (except where such Material Contract has expired in accordance with its terms).

(iii)           No Group Company has received written notice of termination of any Material Contract which remains outstanding or of any claim for material breach, violation or default under any such contract.

(iv)           Each Group Company has duly performed, in all material respects, all of its obligations under each Material Contract, and no material breach or default, alleged material breach or alleged default, or event which would (with the passage of time, notice or both) constitute a material breach or default thereunder by such Group Company or, to the Knowledge of the Company, any other party or obligor with respect thereto, has occurred.

(v)            Each Material Contract is valid and binding and enforceable against the applicable Group Company and, to the Knowledge of the Company, the other parties to such Material Contract, and is in full force and effect (subject to the Enforceability Exceptions), and will continue to be so enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents.

(vi)           None of the execution or delivery of this Agreement or any other Transaction Documents, or the performance of any obligations of the Company hereunder or thereunder, shall require any Consent from any Person that is a party to any Material Contract which has not been obtained on or prior to the date hereof.

(l)            Related Party Transactions. No Related Party has any Material Contract, or proposed transaction with, or is indebted to, any Group Company or has any direct or indirect interest in any Group Company, nor is any Group Company indebted (or committed to make loans or extend or guarantee credit) to, any Related Party (other than for accrued salaries for the current pay period, reimbursable expenses or other standard employee benefits in the ordinary course of business consistent with past practice).

(m)            Employee Matters.

(i)             Each Group Company has complied in all material respects with all applicable employment and labor laws. Each Group Company has withheld and paid to the appropriate Governmental Authority or is holding for payment not yet due to such Governmental Authority all material amounts required to be withheld from employees of such Group Company.

(ii)            To the Knowledge of the Company, no officer or key employee (including any Key Person) intends to terminate their employment with any Group Company. No Group Company has a present intention to terminate the employment of any officer or key employee (including any Key Person).

(iii)           There is no material dispute or controversy pending or, to the Knowledge of the Company, threatened between any Group Company and any of its existing or former employees, directors, officers or trade union, representative council or other body representing any of them.

(iv)           Each Key Person set forth in Part 1 of Schedule 3.01(m) has entered into an employment agreement and a non-compete and non-solicitation agreement or an employment agreement containing non-compete and non-solicitation provisions, and provisions for the protection of the Company's and the Group's confidential information, in each case with the relevant Group Company. The Company has Fairly Disclosed in the VDR a true and complete copy of each such employment agreement.

(v)            The performance of each Key Person's duties to the Group Companies will not, to the Knowledge of the Company, constitute a breach of, or otherwise contravene, the terms of any employment or other agreement or policy, or any judgment, decree or order of any court or administrative agency, to which he/she is a party or is otherwise bound.

(vi)           (A) No Group Company is a party to or bound by any collective bargaining agreement or other labor union contract applicable to persons employed by it, and there are no labor unions, works councils or other organizations representing or purporting to represent any employee of the Group Companies, nor are there any organizational campaigns, petitions or other unionization activities, to the Knowledge of the Company, seeking recognition of a collective bargaining unit which could affect any Group Company, (B) there are no unfair labor practice complaints pending or, to the Knowledge of the Company, threatened against any Group Company before any Governmental Authority, and (C) there is no labor strike, slowdown, work stoppage or lockout, or similar activity or the threat thereof, by or with respect to any of its employees nor has there been any such occurrence during the three (3) years preceding the date of this Agreement.

(vii)          Each Company Plan is and has at all times, in all material respects, been operated and administered in compliance with the provisions thereof and all Applicable Law. Each contribution or other payment that is required to have been accrued or made under or with respect to any Company Plan has been duly accrued and made on a timely basis in all material respects. There is no Action pending, or, to the Knowledge of the Company, threatened against any Company Plan or against the assets of any Company Plan.

(n)            Tax Matters.

(i)             Each of the Group Companies has timely filed (taking into account any extensions) all Tax Returns that are required to be filed by it and has timely paid all Taxes owed by it which are due and payable (whether or not shown on any Tax Return), and has withheld and remitted to the appropriate Tax Authorities all Taxes which it is obligated to withhold and remit from amounts owing to any employee, creditor, customer or other person.

(ii)            Each Tax Return filed by the Group Companies was properly prepared in compliance with applicable Laws and is true, correct and complete in all material respects.

(iii)            The provisions for Taxes in the respective Accounts are sufficient for the payment of all accrued and unpaid applicable Taxes of the Group Companies, whether or not assessed or disputed as of the date of each such Accounts. Since the Balance Sheet Date, none of the Group Companies has incurred any Taxes, assessments or governmental charges other than in the ordinary course of business and each Group Company has made adequate provisions on its books of account for all Taxes, assessments and governmental charges with respect to its Business, properties and operations for such period.

(iv)           No Tax deficiency has been asserted against any Group Company.

(v)            No Group Company is subject to or has executed any waivers of any applicable statutes of limitations with respect to Taxes for any Tax period or agreed to any extension of time with respect to a Tax assessment or deficiency.

(vi)          All records relating to Tax Returns or to the preparation thereof required by applicable Law to be maintained by applicable Group Company have been duly maintained.

(vii)          There is no audit, action, suit, dispute, claim, proceeding or investigation now pending or, to the Knowledge of the Company threatened against or with respect to any Group Company relating to Taxes. To the Knowledge of the Company, there are no facts or circumstances that might give rise to any such audit, action, suit, dispute, claim, proceeding or investigation that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(viii)         Each of the Group Companies is and has at all times been resident, and has had a place of business or permanent establishment, in either case for the purposes of Tax only in its jurisdiction of organization and is not liable to pay Tax chargeable under the law of, or file a Tax Return in, any jurisdiction other than its jurisdiction of organization. No claim has been made by any Tax Authority in a jurisdiction where a Group Company does not already file a Tax Return for any particular type of Tax that a Group Company is or may be subject to Taxation by, or required to file any Tax Return for that type of Tax in, that jurisdiction.

(ix)            Each Group Company is in compliance with all applicable requirements to maintain contemporaneous documentation substantiating the transfer pricing practices and methodology of each Group Company, and no transfer pricing arrangement was or is being challenged by any Tax Authority.

(x)            No Group Company has been a member of an affiliated, consolidated, combined or unitary group other than one of which the Company was the common parent, or made any election or participated in any arrangement whereby any Tax Liability or any Tax asset of any Group Company was determined or taken into account for Tax purposes with reference to or in conjunction with any Tax Liability or any Tax asset of any other Person.

(xi)           No Group Company is party to any Tax Sharing Agreement.

(xii)          None of the Group Companies has ever filed an entity classification election for U.S. federal income tax purposes.

(xiii)          The Company is not a "controlled foreign corporation" for U.S. federal income tax purposes.

(xiv)         The Company was not a "passive foreign investment company" ("PFIC") within the meaning of Section 1297 of the Code for its most recent taxable year and does not expect to be a PFIC for its current taxable year or in the foreseeable future.

(o)            Solvency.

(i)             Each Group Company (A) is able to pay its debts as they become due and has not stopped paying its debts or indicated an intention to do so, (B) owns property which has a fair saleable value greater than the amounts required to pay their debts, and (C) has sufficient capital to carry on its business.

(ii)            No bankruptcy, insolvency or judicial composition proceedings concerning any Group Company has been applied for or, to the Knowledge of the Company, threatened against by any Person. To the Knowledge of the Company, no circumstances exist which would require an application for any bankruptcy, insolvency or judicial composition proceedings concerning any Group Company nor do any circumstances exist according to any applicable bankruptcy or insolvency laws which would justify the avoidance of this Agreement.

(p)            Environmental Matters. Each Group Company is in compliance in all material respects with all Applicable Law currently in effect concerning pollution or protection of the environment or the effect of the environment on public or worker health or safety, including all such laws and regulations relating to the emission, discharge or release of any petroleum, pollutants, contaminants or hazardous or toxic materials, substances or wastes into air, surface water, groundwater or lands. In the three (3) years preceding the date of this Agreement, none of the Group Companies has received any written notice from any Governmental Authorities of any material violations or liabilities imposed under Applicable Law in effect concerning pollution or protection of the environment relating to its business.

(q)            Compliance with Laws and Consent.

(i)             Each Group Company is in compliance with all Applicable Law in all material respects.

(ii)            The Group Companies have all valid and subsisting Consents of any Governmental Authority which are required for the operation of their respective Businesses as presently conducted, other than those the absence of which would not be material to any Group Company. All such Consents of any Governmental Authority are valid and in full force and effect and no Group Company is in default or violation in any material respect of any term, condition or provision of any Consent of any Governmental Authority that is material for the operation of the Group Company as presently conducted.

(iii)            There is no Action outstanding or, to the Knowledge of the Company, threatened against any Group Company which would reasonably be expected to result in the suspension, cancellation, modification or revocation of any Consent of any Governmental Authority that is material of the operation of the Group Company as presently conducted.

(iv)            The matters set forth on Schedule 3.01(q)(iv) are true and correct.

(r)            Compliance with Anti-Corruption Laws.

(i)             None of the Group Companies, nor any director of a Group Company, nor, to the Knowledge of the Company, any agent, employee or other Person acting for or on behalf of a Group Company (together, the "Covered Persons"), has offered, promised, authorized or made, directly or indirectly, illegal payments or other inducements (regardless of form, whether in money, property or services) to any (A) Public Official or (B) any other Person, knowing that all or any portion of the money or thing of value will be offered or given to a Public Official, in each of the foregoing clauses ‎(A) and ‎(B) for the purpose of improperly influencing any action or decision of the Public Official in his or her official capacity, including a decision to fail to perform his or her official duties, inducing the Public Official to improperly use his or her influence with any Governmental Authority to affect or influence any official act, or otherwise obtaining an improper advantage, or to make or authorize any other Person to make any payments or transfers of value which have the purpose or effect of commercial bribery, or acceptance or acquiescence in kickbacks or other unlawful or improper means of obtaining or retaining business, in each case, in violation of applicable Anti-Corruption Laws. For purposes of the foregoing clauses (A) and (B), a Person shall be deemed to have "knowledge" with respect to conduct, circumstances or results if such Person is aware of (x) the existence of, or (y) a high probability of the existence of such conduct, circumstances or results.

(ii)            None of the Group Companies, nor, to the Knowledge of the Company, no Covered Person has been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any offence under any Anti-Corruption Laws, and no such investigation, inquiry or enforcement proceedings is pending or threatened.

(iii)            Each Group Company has in place (A) policies, procedures and controls that are reasonably designed to promote and ensure compliance with Anti-Corruption Laws, (B) books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of such Group Company, and (C) internal accounting controls sufficient to provide reasonable assurances that all transactions and access to assets of each Group Company were, have been and are executed only in accordance with management's general or specific authorization.

(s)            Compliance with Anti-Money Laundering Laws. The operations of the Group Companies are and have been conducted at all times in compliance in all material respects with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any Group Companies with respect to the Anti-Money Laundering Laws is pending or, to the Knowledge of the Company, threatened. The Group Companies have implemented and shall maintain internal controls, policies and procedures reasonably designed to ensure compliance by the Group Companies with applicable Anti-Money Laundering Laws.

(t)            Compliance with Export Controls Laws. Each Group Company has, in all material respects, conducted all export transactions in accordance with applicable Export Controls Laws. Without limiting the foregoing: (A) the Group Companies obtained all export licenses and other approvals, timely filed all required filings and has assigned the appropriate export classifications to all products, in each case as required for its exports of products, software and technologies from the U.S. and any other applicable jurisdiction, (B) the Group Companies are in compliance with the terms of all applicable export licenses, classifications, filing requirements or other approvals, (C) there are no pending or, to the Knowledge of the Company, threatened claims against any Group Company with respect to such exports, classifications, required filings or other approvals, (D) there are no pending investigations related to any Group Company's exports, and (E) there are no actions, conditions, or circumstances pertaining to any Group Company's export transactions, in each case of the foregoing clauses (C) through (E), except that would not reasonably be expected to give rise to any material future claims.

(u)            Sanction Compliance.

(i)            None of the Group Companies, or any director, officer, or employee thereof, or, to the Knowledge of the Company, any agent, Affiliate or representative of any Group Company, is a Person that is, or is owned or controlled by one or more Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People's Republic or Luhansk People's Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).

(ii)            Each of the Group Companies is, and for the five (5) years preceding the date of this Agreement, has been, in compliance with applicable Sanctions. None of the Group Companies has been penalized for or, threatened in writing to be charged with, given written notice of, or to the Knowledge of the Company, is or has been under investigation by a Governmental Authority with respect to, any violation of any Sanctions.

(iii)            Each of the Group Companies has implemented and will maintain internal controls, policies and procedures reasonably designed to ensure compliance by the Group Companies and their respective directors, officers, employees, agents, Affiliates, and representatives with applicable Sanctions.

(iv)            Each of the Group Companies has not engaged in, are not now engaged in, and will not 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 the subject of Sanctions, except to the extent permitted for a Person required to comply with an applicable Sanction.

(v)            No Undisclosed Material Liabilities. There are no liabilities of the Company or any Subsidiary of any kind, other than: (A) liabilities provided for in the Accounts or disclosed in the notes thereto; (B) liabilities incurred as of or prior to the Balance Sheet Date that are not required under GAAP to be shown on the Accounts for reasons other than the contingent nature thereof or the difficulty of determining the amount thereof; (C) liabilities Fairly Disclosed in this Agreement or any Schedule hereto; (D) liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date; or (E) other undisclosed liabilities that are not, in the aggregate, material to the Group, taken as a whole.

(w)            Sufficiency of Assets. The assets, properties and rights owned or leased by the Group Companies include all assets, properties and rights (tangible and intangible) that are necessary and sufficient to conduct the Business of the Group Companies in the manner in which it is currently being conducted.

(x)            Full Disclosure. None of the representations and warranties set forth in this Section 3.01, taking into account the Disclosures as Fairly Disclosed, contains any untrue statement of a material fact or omits a material fact necessary to make each statement contained herein or therein, in light of the circumstances in which they were made, misleading in any material respect.

(y)            No Other Representations or Warranties. Except for the representations and warranties expressly set forth in this Section 3.01, the Company has not made and does not make any representation or warranty, express or implied, to any Investor or any Affiliate thereof as to the Subscription Shares, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects of the Company or the Group (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects).

Section 3.02       Warranties of Each Investor. Each Investor, severally and not jointly, and with respect to itself only, hereby warrants to the Company that, as of the date hereof and as of the Closing Date, each of the following statements is true and correct:

(a)            Organization. Such Investor is duly organized and validly existing under, and by virtue of, the Applicable Law of the jurisdiction of its organization and incorporation.

(b)            Authorization and No Conflicts.

(i)            Such Investor has all requisite power and authority to execute and deliver this Agreement and the Shareholders Deed and to carry out and perform its obligations hereunder and thereunder. All corporate actions on the part of such Investor, its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement and the Shareholders Deed, the performance of all obligations of such Investor hereunder and thereunder, including the subscription and purchase of the Subscription Shares, the authorization of the transactions contemplated hereby, have been taken or will be taken prior to the Closing, and this Agreement has been duly executed and delivered by such Investor and constitutes valid and legally binding obligations of such Investor, and the Shareholders Deed, when executed and delivered by such Investor, shall constitute valid and legally binding obligations of such Investor, enforceable against such Investor in accordance with their respective terms except as limited by the Enforceability Exceptions.

(ii)            Except as otherwise expressly contemplated under this Agreement, (A) no filing with, and no Consent of, any Governmental Authority or any third party is necessary on the part of such Investor for the valid and lawful authorization, execution, delivery and performance of this Agreement or the Shareholders Deed by such Investor or the consummation by such Investor of the transactions contemplated hereby or thereby, and (B) neither the execution, delivery or performance of this Agreement or the Shareholders Deed by such Investor nor the consummation by such Investor of the transactions contemplated hereby or thereby will (x) conflict with or result in a violation of any provision of the Charter Documents of such Investor, (y) conflict with or result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of such Investor pursuant to, any Contract to which such Investor is a party or by which such Investor or any property or asset of such Investor is bound or affected, or (z) conflict with or violate any Applicable Law in respect of such Investor or any of such Investor's properties or assets, except in each case of the foregoing clauses (y) and (z), where such conflict, violation, breach, event of default or other result described in such clauses would not reasonably be expected to have any material adverse effect on the ability of such Investor to consummate the transactions contemplated by the Transaction Documents.

(c)            Investor Status. Such Investor (i) is either (A) a "qualified institutional buyer" as defined in Rule 144A under the United States Securities Act of 1933 (as amended) (the "Securities Act"), or (B) a non-"U.S. person" located outside the U.S., and (ii) confirms and agrees that such Investor is acquiring the Subscription Shares in an "offshore transaction" and such acquisition is not a result of any "directed selling efforts" in the U.S. and is relying on the exemption from registration provided under Regulation S of the Securities Act.

(d)            Experienced Investor. Such Investor (i) has, by reason of its business and financial experience, such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type, and (ii) is capable of evaluating the merits and risks of investment decisions of this type, making an informed investment decision, protecting its own interest, bearing the economic risk of such investment for an indefinite period of time, and affording a complete loss of such investment.

(e)            Subscription for Own Account. The Subscription Shares to be acquired by such Investor pursuant to this Agreement are being acquired for its own account for investment only, and not with a view to, or for sale in connection with, any distribution of such Subscription Shares or any part thereof in any transaction that would be in violation of Applicable Law in respect of such Investor or the Group Companies.

(f)            Sufficient Funds.

(i)            Such Investor has, or will have at the Closing and any subsequent payment date, sufficient cash, internal funds, available lines of credit or other sources of immediately available funds in US$ (such aggregate amount of funds, the "Investor Funds") to pay for the purchase of its Subscription Shares.

(ii)            Each of the Investors listed on Schedule 3.02(f)(ii) has delivered to the Company a true and complete copy of the executed Equity Commitment Letter among such Investor, the investment fund(s) named therein and the Company, pursuant to which such investment fund(s) have committed, subject to the terms and conditions set forth therein, to invest or cause to be invested in the equity capital of such Investor the amount set forth therein for the purposes of financing the Subscription Price.

(iii)            The Equity Commitment Letter of such Investor has not been amended or modified in any manner and none of the commitments contained in the Equity Commitment Letter of such Investor has been withdrawn or rescinded in any respect, and neither such Investor nor its investment funds named therein has entered into any agreement, side letter or other arrangements that has the effect of varying or nullifying the terms of such Equity Commitment Letter.

(iv)            The Equity Commitment Letter of such Investor is in full force and effect and represents a valid, binding and enforceable obligation of such Investor and the investment fund(s) named therein, subject only to the satisfaction or waiver of the conditions specified therein and the Enforceability Exceptions.

(v)            Such Investor is not aware of any fact or occurrence existing on the date of this Agreement that would reasonably be expected to make any of the assumptions or any of the statements set forth in its Equity Commitment Letter inaccurate or that would reasonably be expected to cause any commitment contained therein to be ineffective.

(g)            Information. Such Investor (i) had the opportunity to ask questions of and receive answers from the Company, and (ii) conducted and completed its own due diligence with respect to the transactions contemplated hereby. Except for the representations, warranties and agreements of the Company expressly set forth in this Agreement, such Investor is relying on its own investment analysis and due diligence with respect to the transactions contemplated hereby, the Subscription Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company. Such Investor has obtained advice of its own, independent legal counsel in connection with its entry into this Agreement and the transactions contemplated by the Transaction Documents, and has not relied on the Company or any of its Affiliates or their respective Representatives for any tax or legal advice in connection with its entry into this Agreement and the transactions contemplated hereby.

(h)            No Public Market. Such Investor understands that no public market now exists for the Subscription Shares, and that, except as set forth in the Transaction Documents, the Company has not made any assurances that a public market will ever exist for the Subscription Shares. Such Investor acknowledges and confirms that the Subscription Shares have not been registered under the securities laws of the U.S. or any other jurisdiction, which may not be resold or transferred in the U.S. or otherwise except in compliance with Applicable Law and the restrictions on transfer set forth in the Transaction Documents.

(i)            Anti-Money Laundering. The monies used to fund such Investor's subscription of Subscription Shares in the transactions contemplated hereby have not been or will not be derived from or related to any illegal activities, including money laundering activities in violation of any Anti-Money Laundering Laws.

(j)            No Other Representations or Warranties. Except for the warranties expressly set forth in this Section 3.02, such Investor has not made and does not make any representation or warranty, express or implied, to any Group Company or its Affiliates as to such Investor or any of its Affiliates.

Article IV

Covenants

Section 4.01       Conduct of Business. From the date hereof until the Closing Date, except (a) as set forth on Schedule 4.01, (b) as required by Applicable Law, (c) as otherwise expressly contemplated by the Transaction Documents, or (d) with the prior written consent of each of the Investors that will constitute a Major Shareholder upon the Closing (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall conduct its business, and shall cause its Subsidiaries to conduct their respective businesses, in the ordinary course of business consistent with past practice or the Company's business plan, which conduct, for the avoidance of doubt, would not involve any matter that constitutes a Board Reserved Matter or a Shareholder Reserved Matter (in each case, as defined in the Shareholders Deed) from the date hereof until prior to the Closing Date.

Section 4.02       Use of Proceeds. The Company shall use the proceeds from the sale of the Subscription Shares (the "Proceeds") for (a) the operations of the Group, including development of data centers, capital expenditures, business expansion, and general working capital, and (b) the repayment of outstanding shareholder loans and other payables due to GDSH in an aggregate amount not exceeding US$270 million immediately after the Closing. The Company and GDSH agree that all shareholder loans and such other payables due from any Group Company to GDSH or its Subsidiaries (excluding any Group Company) shall promptly be fully repaid or discharged on or following the Closing Date and in any event not later than fifteen (15) Business Days following the Closing Date. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by the Transaction Documents, the Proceeds shall not be used to (i) make loans or other contributions to GDSH or its Subsidiaries (excluding any Group Company for the purpose of this Section 4.02), (ii) repay any financial indebtedness owed by any Group Company to any Related Party, or (iii) redeem or repurchase any Company Securities or Subsidiary Securities, in each case, without the prior written consent of each Investor. The Company will not directly or indirectly use the Proceeds for the purpose of funding or facilitating any activities or business of or with any person towards any sales or operations in Cuba, Iran, Democratic People's Republic of Korea, Syria, Venezuela, and the Donetsk People's Republic, the Luhansk People's Republic, and the Crimea regions of Ukraine or any other country subject to comprehensive Sanctions by OFAC from time to time.

Section 4.03       Access to Information. From the date hereof until the Closing Date, the Investors shall be entitled, through their respective Representatives, to make such investigation of the properties, businesses and operations of the Company and its Subsidiaries, and such examination of the books and records of the Company and its Subsidiaries as they reasonably request. Any such investigation and examination shall be conducted during regular business hours upon reasonable advance notice and under reasonable circumstances, and shall be subject to restrictions under Applicable Law. The Company shall cause the officers, employees, accountants, attorneys and other Representatives of the Company and its Subsidiaries to reasonably cooperate with the Investors and their respective Representatives in connection with such investigation and examination, and the Investors and their respective Representatives shall cooperate with the Company and the Company's Representatives and shall use their reasonable efforts to minimize any disruption to the Group's Business. Notwithstanding anything herein to the contrary, (a) no such investigation or examination shall be permitted to the extent that it would require the Company or any of its Subsidiaries to disclose information subject to attorney-client privilege or conflict with any confidentiality obligations to which the Company or any of its Subsidiaries is bound, and (b) without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), (i) the Investors shall not contact any suppliers to, or customers of, the Company, and (ii) the Investors shall have no right to perform any invasive or subsurface investigations of the properties or facilities of the Company or any of its Subsidiaries.

Section 4.04       GDSH Services Agreements.

(a)            On or prior to the Closing, the Company and GDSH shall (or GDSH shall cause one or more of its applicable Affiliate(s) to) enter into (i) the Services Agreement, (ii) the IP License Agreement, and (iii) the Corporate Guarantees Agreement, pursuant to which GDSH will provide to the Group Companies certain management support, sales and procurement, corporate guarantee, intellectual property licensing and other relevant services, in the case of sub-clause (i), based on the terms included in the form attached as Exhibit C, and in each case of sub-clauses (ii) and (iii), based on the key terms set forth in the applicable Exhibits hereto, respectively (subject to any modifications or updates agreed to be made by the Company or GDSH to such GDSH Services Agreements pursuant to the procedures set forth in Section 4.04(b) (such procedures, the "Procedural Requirements")); provided, that (x) the terms of each such GDSH Services Agreement (A) shall provide that the fees for any services provided by GDSH thereunder are on a cost-plus basis or such other pricing in accordance with GDSH's existing transfer pricing framework and shall be consistent with the parameters described in Exhibit F, and (B) shall be on terms and conditions that are customary market terms for similar agreements on arms-length basis (sub-clauses (A) through (B) are collectively referred to as the "Agreed Parameters"), and (y) each of the Company and GDSH shall comply with the Procedural Requirements.

(b)            Promptly following the date hereof, the Company shall furnish the initial forms of the IP License Agreement and the Corporate Guarantees Agreement containing the key terms set forth in Exhibit D and Exhibit E, respectively, an updated form of the Services Agreement based on the terms included in the form attached as Exhibit C and taking into consideration comments received from the Investors prior to the date hereof, and other terms and conditions that are consistent with the Agreed Parameters, to each Investor who will constitute as a Major Shareholder upon the Closing (such Investors, the "Relevant Investors"). The Company shall in good faith provide reasonable information and access for discussion with relevant personnel if reasonably requested by the Relevant Investors for purposes of considering and reviewing the proposed terms and conditions of the Services Agreement and for discussing comments in relation thereto. The Relevant Investors shall deliver to the Company and GDSH any comments they may have to the forms of the Services Agreement, the IP License Agreement, and the Corporate Guarantees Agreement no later than the date that is ten (10) Business Days after the last of such forms is furnished (such date, the "Comment Submission Date"). If any of the Relevant Investors has delivered comments to the applicable GDSH Services Agreements in accordance with this Section 4.04(b), each of the Company and GDSH shall consider in good faith such comments so delivered and use its reasonable best efforts to, to the extent commercially feasible and consistent with the Agreed Parameters, reflect such comments in the terms and conditions to be contained in final forms of the applicable GDSH Services Agreement, and the Company shall furnish the final forms of the GDSH Services Agreements to the Relevant Investors no later than the date that is the earlier of (x) five (5) Business Days following the Comment Submission Date and (y) two (2) Business Days prior to the Closing Date. The Services Agreement, the IP License Agreement and the Corporate Guarantees Agreement to be entered into by the Company and GDSH (or its applicable Affiliate(s)), unless otherwise agreed by GDSH, the Company and the Relevant Investors, shall be consistent with the final forms of such agreements furnished to the Relevant Investors pursuant to the preceding sentence.

(c)            As soon as reasonably practicable following the date hereof and in any event no later than six (6) months following the Closing, GDSH shall cause its applicable Subsidiary(ies) to assign all of the rights under all of the GDS (HK) Contracts to a Group Company that is incorporated in Hong Kong and designated by the Company (the "Designated HK Group Company"), and the Designated HK Group Company shall assume all of the obligations under the GDS (HK) Contracts, in each case, in accordance with the terms of the GDS (HK) Contracts and without imposition of any conditions or requirements (including amendment of terms) that would be adverse to the Designated HK Group Company, and without any imposition of any adverse tax consequences or liabilities to the Group. In connection with the foregoing, the Company shall cause the Designated HK Group Company to apply for, and use its commercially reasonable efforts to obtain, a Services-Based Operator (SBO) License from the Communications Authority of Hong Kong as soon as reasonably practicable following the Closing. GDSH shall procure, during the Pre-Assignment Period, that (A) GDS (Hong Kong) Limited shall not exercise its early termination right or right to terminate for convenience or similar rights under the HK1 Site Services Agreement, unless the termination is with respect to a service request form in which the underlying data center customer or tenant has similarly exercised its early termination right or right to terminate for convenience or similar rights under the relevant data center customer contract, and (B)(i) all revenue and payments which GDS (Hong Kong) Limited receives under the GDS (HK) Contracts will be paid by GDS (Hong Kong) Limited to the Designated HK Group Company; (ii) GDS (Hong Kong) Limited will not, nor agree to, terminate, supplement or amend any of the GDS (HK) Contracts in any manner materially adverse to the Group Companies, or provide any concessions or waivers to the relevant customers in relation to the GDS (HK) Contracts. GDSH shall procure that, during the Pre-Assignment Period, GDS (Hong Kong) Limited shall waive any and all claims it has against EDP I (HK) Limited under the HK1 Site Services Agreement for any delay or failure by EDP I (HK) Limited in delivering any of the services thereunder, provided, that such waiver shall not apply to any claims which arise after the Closing against EDP I (HK) Limited for its delay or failure in obtaining the requisite power supply in accordance with the terms of the HK1 Site Services Agreement and such delay or failure results in the underlying data center customer or tenant bringing claims against GDS (Hong Kong) Limited for breach under the relevant data center customer contract.

Section 4.05       Notice of Certain Events. From the date hereof until the Closing Date, the Company shall use its reasonable best efforts to promptly notify each Investor:

(a)            any notice or other communication from any Governmental Authority in connection with the transactions contemplated by the Transaction Documents;

(b)            any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by the Transaction Documents;

(c)            any Action commenced or, to the Knowledge of the Company, threatened against, relating to or involving or otherwise affecting any Group Company that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 3.01(e) or that relate in any material respect to the consummation of the transactions contemplated by the Transaction Documents;

(d)            any inaccuracy of any representation or warranty contained in Section 3.01, to the extent that such inaccuracy is or has been known to the Company; and

(e)            any failure of the Company to comply with any covenant or agreement, to the extent that such failure is or has been known to the Company,

provided, however, that the delivery of any notice pursuant to this Section 4.05 shall not limit or otherwise affect the remedies available hereunder to the party receiving that notice.

Section 4.06       Reasonable Best Efforts. Subject to the terms and conditions of this Agreement, the Company and each of the Investors shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or appropriate to (a) cause the fulfilment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement, (b) consummate the transactions contemplated by this Agreement, and (c) consummate the Closing concurrently with such other Investors on the same Closing Date.

Section 4.07       Investor Financing.

(a)            Each Investor undertakes prior to the Closing not to: (i) cancel, change, amend, restate, replace, supplement, assign or otherwise modify or terminate the Equity Commitment Letters or reduce any commitments thereunder, or (ii) agree to the waiver of any rights thereunder; in each case, if such cancellation, change, amendment, restatement, replacement, supplement, assignment, modification, termination or waiver will reduce or cause to be reduced of the aggregate amount of commitment thereunder, without the prior written consent of the Company.

(b)            Prior to the Closing, each Investor shall keep the Company informed of all material developments in respect of the Equity Commitment Letters which could result in the Investor Funds not being available to be drawn or at or prior to the Closing in accordance therewith and shall give the Company prompt written notice of: (i) any breach or default by any party to the Equity Commitment Letters of which such Investor becomes aware, and (ii) the receipt of any written notice or other written communication from any equity financing source with respect to any breach, default, termination or repudiation by any party to the Equity Commitment Letters or any definitive document related to the equity financing or any dispute or disagreement between or among any parties to the Equity Commitment Letters, in each case, which could result in the Investor Funds not being available to be drawn at or prior to the Closing in accordance with the Equity Commitment Letters.

Section 4.08       Employment Agreements. As soon as reasonably practicable following the date hereof, and in any event within fifteen (15) Business Days following the Closing Date, the Company shall use its reasonable best efforts to enter into an employment agreement and a non-compete and non-solicitation agreement, or an employment agreement containing non-compete and non-solicitation provisions, with each of the Key Persons set forth in Part 2 of Schedule 3.01(m).

Article V

Indemnification

Section 5.01       Indemnity.

(a)            Subject to Section 5.02, from and after the Closing, the Company and GDSH (solely in respect of its obligations under Section 4.02 and Section 4.04) shall indemnify, defend and hold harmless each Investor, its Affiliates, its and its Affiliates' respective directors, officers, and shareholders (the "Investor Indemnified Parties") from and against any and all reasonably foreseeable damages, losses, claims, judgement, penalty, fines, Liabilities, Taxes and expenses (including reasonable expenses of investigation and attorneys' fees and expenses, or any diminution in the value of the Investor's Subscription Shares under this Agreement) (each, a "Loss" and collectively, "Losses") suffered by such Investor Indemnified Party arising out of, resulting from or relating to (a) any inaccuracy in or breach of any representation or warranty of the Company contained in Section 3.01, or (b) the nonperformance or breach of any covenant or other agreement to be performed by the Company or GDSH (solely for purposes of the applicable covenants in Section 4.02 and Section 4.04) under this Agreement. The Losses subject to the indemnification obligations herein shall take into account such damages, losses and expenses that are (i) awarded to or recovered by a third party in connection with any Action initiated by such third party against any Group Company or the applicable Investor Indemnified Party and (ii) actually paid or payable by any Group Company or such Investor Indemnified Party.

(b)            The Company will pay to the Investors the amount incurred by GDS (Hong Kong) Limited or the relevant Group Company and calculated in accordance with the terms and conditions set forth in Schedule 5.01, which shall not be subject to the liability limitations set forth in Section 5.02.

(c)            From the Closing until the date that is six (6) months following the Closing Date (such period, the "Joint Indemnification Period"), the Company and GDSH shall be jointly and severally liable for the Company's obligations under Section 5.01(a) in respect of any inaccuracy in or breach of any representation or warranty of the Company contained in Section 3.01. Following the Joint Indemnification Period, GDSH's obligations pursuant to this Section 5.01(c) shall terminate; provided, that nothing in this Section 5.01(c) shall be deemed or construed to limit, diminish or otherwise impair any liability of GDSH incurred prior to such termination.

Section 5.02       Liability Limitations.

(a)            After the Closing, the indemnity under Section 5.01 will be each Investor Indemnified Party's exclusive and sole remedy for any misrepresentation or breach of any representation, warranty, covenant or other agreements of the Company in this Agreement, except in the case of any Losses of any Investor Indemnified Party that were caused by any fraud committed by the Company; provided, that solely with respect to any breach of the covenants or other agreements to be performed by the Company in Section 4.04(a) and Section 4.04(b) (the "Specified Covenants"), the indemnity under Section 5.01 in respect of the Specified Covenants shall apply from and after the date hereof (and the words "from and after the Closing" contained in the first sentence of Section 5.01 shall be disregarded for the indemnity under Section 5.01 in respect of the Specified Covenants) and such indemnity shall, from and after the date hereof, be each Investor Indemnified Party's exclusive and sole remedy in respect of such breaches.

(b)           The Company's aggregate Liability in respect of claims for indemnification under Section 5.01(a) by any Investor and its Investor Indemnified Parties in respect of any claim arising under, or in respect of, a breach of any provision of, this Agreement (including any warranty), shall not exceed fifteen percent (15%) of the Subscription Price paid by such Investor.

(c)            The Company shall not be liable to any Investor and its Investor Indemnified Parties for indemnification under Section 5.01(a) for any Losses unless and until the aggregate amount of all Losses, counting only such Losses that each exceeds the Per Claim Threshold, suffered by such Investor and its Investor Indemnified Parties under this Agreement exceeds zero point five percent (0.5%) of such Investor's Subscription Price (the "Indemnification Threshold"); and once such Indemnification Threshold has been exceeded, such Investor Indemnified Parties shall have the right to recover all Losses hereunder and not the excess only (subject to the other limitations under this Section 5.02). With respect to any Investor and its Investor Indemnified Parties, the amount of Losses arising from any particular inaccuracy in or breach of any warranty of the Company for indemnification under Section 5.01(a) must exceed zero point zero five percent (0.05%) of such Investor's Subscription Price before such Losses are eligible for indemnification hereunder and counted towards the Indemnification Threshold (the "Per Claim Threshold"), and any Losses below the Per Claim Threshold shall not be counted towards the Indemnification Threshold.

(d)           In no event shall the Company or GDSH be liable in connection with this Agreement, the negotiation, execution or performance of this Agreement, or the transactions contemplated hereby, for any Losses that are punitive, incidental, consequential, special or indirect, except to the extent such Losses are reasonably foreseeable or are awarded to or recovered by a third party related to a claim in respect of which indemnity may be sought under Section 5.01 (provided that such Losses have actually been paid or is payable by any Group Company or such Investor Indemnified Party).

(e)           Any Losses subject to indemnification hereunder shall be determined without regard to materiality or Material Adverse Effect qualification contained in any representation or warranty, and without duplication of recovery by reason of the state of facts giving rise to such Losses, including if such state of facts constitutes a breach of more than one warranty, covenant or other provision of this Agreement.

(f)            The Company shall have no Liability under Section 5.01 in respect of any Losses of any Investor for any misrepresentation or breach of any warranty of the Company in Section 3.01 (other than in respect of claims by any Investor or Investor Indemnified Party (x) for misrepresentation or breach of any Fundamental Warranties, which claims shall survive indefinitely, or (y) with respect to Tax, which shall survive until sixty (60) days following the expiry of the applicable statute of limitations) unless such Investor has validly served on the Company a written notice setting forth the specific claim and the basis therefor in reasonable detail on or before the end of the eighteenth (18^th) month following the Closing and, upon serving such notice, such claim shall survive until finally resolved. Such notice shall set forth, to the extent known to the Investor and its Investor Indemnified Parties, in reasonable details of the claim, including all relevant facts, such Investor's then best reasonable estimate of the amount of its and its Investor Indemnified Parties' Losses eligible for indemnification hereunder, and the bases for such estimate, provided that failure to do so shall not affect the Company's indemnification obligations except to the extent that the Company is actually prejudiced by such failure. The covenants and agreements of each party contained in this Agreement shall survive the Closing Date.

(g)           Neither the Company nor GDSH shall have any Liability in respect of any Loss to the extent:

(i)            of any amount which is included as a liability in, or is otherwise specifically reflected on, set forth in, or specifically allowed for or provided for in, the Accounts in respect of the subject matter of such Loss; or

(ii)            of any amount recovered under any other claim in respect of the same matter, fact or circumstance.

(h)            Neither the Company nor GDSH shall have any Liability in respect of any Loss to the extent that such Loss is attributable to, or arises as a result of, or is increased by:

(i)            any voluntary act, omission or transaction carried out by or at the written request of or with the written consent of any Investor;

(ii)            anything expressly provided to be done or omitted to be done pursuant to this Agreement or the other Transaction Documents;

(iii)            any change in Applicable Law or in administrative practice of any Governmental Authority or any Order delivered or occurring after the date of this Agreement; or

(iv)            any change after the Closing in the Taxation or accounting bases, policies, practices or methods applied in preparing any accounts or valuing any assets of the Group from those used in preparing the Accounts, in each case, to the extent required due to a change in Applicable Law occurring after the Closing Date, or any increase in the rates of Taxation or any imposition of Taxation not in effect at the Closing Date or any withdrawal after the Closing Date of any practice or generally applicable extra-statutory concession previously published by any Tax Authority (whether or not purporting to be retrospective in whole or in part).

(i)            The amount of any Loss that are subject to indemnification under this ‎Article V shall be reduced by (i) the amount of any insurance proceeds and any indemnity, contribution or other similar payment actually received by an Investor Indemnified Party in respect of such Loss or any of the events, conditions, facts or circumstances resulting in or relating to such Loss ("Third-Party Payments"), and (ii) an amount equal to any Tax benefit realized as a result of such Loss by the Investor or any of the Group Companies. If an Investor Indemnified Party receives any Third-Party Payment with respect to any Loss for which it has previously been indemnified (directly or indirectly) by the Company or GDSH, the Investor Indemnified Party shall promptly (and in any event within ten (10) Business Days after receiving such Third-Party Payment) pay to the Company or GDSH, as applicable, an amount equal to such Third-Party Payment (after deducting the costs incurred for realizing such Third-Party Payment) or, if it is a lesser amount, the amount of such previously indemnified Loss.

(j)            Notwithstanding any provisions contained herein to the contrary, no limitation of Liability contained in this Section 5.02 shall apply in the case of any Losses arising out of or relating to any fraud on the part of the Company.

Article VI

Conditions to closing

Section 6.01       Conditions to Obligations of Each Investor and the Company. The obligations of each Investor and the Company to consummate the Closing are subject to the satisfaction (or, to the extent legally permissible, waiver by such Investor and the Company), on or prior to Closing, of the following conditions:

(a)            there shall not be in effect any Order by any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; and

(b)            none of the events set out in Schedule 6.01(b) having occurred.

Section 6.02       Conditions to Obligation of the Company. The obligation of the Company to consummate the Closing with respect to each Investor is subject to the satisfaction (or, to the extent legally permissible, waiver by the Company), on or prior to Closing, of the following conditions:

(a)            the representations and warranties of such Investor contained in Section 3.02 shall be true and correct in all respects (in the case of any such representation or warranty containing any materiality qualification) or in all material respects (in the case of any such representation or warranty without any materiality qualification) as of the date of this Agreement and as of the Closing Date as if made on such date (except for such representations and warranties that are made as of a specific date, which shall speak only as of such date);

(b)            such Investor shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed, or complied with, by such Investor under this Agreement on or prior to Closing; and

(c)            such Investor shall have delivered to the Company a copy of each of the Transaction Documents to which it is a party, duly executed by such Investor.

Section 6.03       Conditions to Obligation of the Investors. The obligation of each Investor to consummate the Closing is subject to the satisfaction (or, to the extent legally permissible, waiver by such Investor), on or prior to Closing, of the following conditions:

(a)            (i) the Fundamental Warranties shall be true and correct in all respects (except for any de minimis inaccuracy in respect of Section 3.01(c)), (ii) the representations and warranties of the Company contained in Section 3.01 (other than the Fundamental Warranties) that contain any "materiality", "material adverse effect", "Material Adverse Effect" or similar qualifiers therein shall be true and accurate in all respects, and (iii) any other representations and warranties of the Company contained in Section 3.01 shall be true and accurate in all material respects, in each case of the foregoing sub-clauses (i), (ii) and (iii), as of the date of this Agreement and as of the Closing Date as if made on such date (except for such representations and warranties that are made as of a specific date, which shall speak only as of such date);

(b)            the Company shall have performed in all material respects the obligations, and complied in all material respects with the agreements and covenants, required to be performed, or complied with, by the Company under this Agreement on or prior to the Closing;

(c)            the Restated Articles shall have been duly adopted by the Company and shall remain in full force and effect;

(d)         the Company shall have paid-in capital in an amount of at least US$411,300,000 as of immediately prior to the Closing;

(e)         the Initial Project Transfer (as defined under the Project Transfer Agreement) shall have been consummated in accordance with the terms and conditions of the Project Transfer Agreement;

(f)          the Company shall have delivered to the Relevant Investors the confirmation set forth in Schedule 6.03(f); and

(g)         the Company shall have delivered to such Investor a copy of each of the Transaction Documents, duly executed by all of the parties thereto other than such Investor.

Article VII

Termination

Section 7.01       Grounds for Termination. This Agreement may be terminated at any time prior to the Closing:

(a)         upon the mutual consent in writing of each of the parties hereto;

(b)         by the Company or any Investor only with respect to such Investor, if the Closing with respect to such Investor has not been completed by the Long Stop Date; provided that the right to terminate this Agreement pursuant to this Section 7.01(b) shall not be available to any Person if such Person's failure to fulfil any obligation under this Agreement or the other Transaction Documents or breach hereunder or thereunder has been a material cause of, or resulted in, the failure of the Closing to occur on or before the Long Stop Date;

(c)         by any Investor, only with respect to such Investor, if a breach of any representation or warranty or failure to perform any covenant or other agreement set forth in this Agreement on the part of the Company shall have occurred that would cause the conditions set forth in Article VI not to be satisfied, and such breach or failure to perform is not cured by the Company within thirty (30) days following receipt of written notice thereof; provided that such Investor is not then in breach of this Agreement so as to cause any of the conditions set forth in Article VI not to be satisfied; or

(d)         by the Company, with respect to an Investor, if a breach of any representation or warranty of failure to perform any covenant or other agreement set forth in this Agreement on the part of such Investor shall have occurred that would cause the conditions set forth in Article VI not to be satisfied, and such breach or failure to perform is not cured by such Investor within thirty (30) days following receipt of written notice thereof; provided that the Company is not then in breach of this Agreement so as to cause any of the conditions set forth in Article VI‎not to be satisfied.

Section 7.02       Effect of Termination. Upon the valid termination of this Agreement pursuant to this Article VII, this Agreement shall become null and void and the rights and obligations of the parties hereunder shall terminate and expire without any Liability of any party to the other parties; provided that (a) the provisions and obligations of the parties under Article I, Article V, this Section 7.02, Section 8.01, Section 8.02, Section 8.04, Section 8.06, Section 8.08, and Section 8.09 shall survive any such termination indefinitely, and (b) nothing in this Section 7.02 shall be deemed or construed to limit, diminish or otherwise impair any Liability of a party incurred prior to such termination.

Article VIII

Miscellaneous

Section 8.01         Confidentiality.

(a)           Each Investor agrees that Confidential Information furnished and to be furnished to it has been and may in the future be made available in connection with such Investor's investment in the Company. Each Investor covenants with the Company that it shall use, and that it shall cause any Person to whom Confidential Information is disclosed pursuant to clause (i) below to use, the Confidential Information only in connection with its investment in the Company and not for any other purpose. (A) Each Investor further covenants with the Company that it shall not disclose any Confidential Information to any Person and (B) the Company covenants with each Investor that it shall not disclose any information concerning the existence and provisions of any Transaction Documents, the negotiations relating to any Transaction Documents or the transactions contemplated hereby and thereby (the "Transaction Information") to any Person, except that Confidential Information or Transaction Information (as the case may be) may be disclosed (in the case of the Company, for so long as such Confidential Information of the Company is not disclosed to a Competitor):

(i)            to such party's Representatives in the normal course of the performance of their duties on a need-to-know basis for the purposes of implementing the terms hereof or enforcing such party's rights hereunder as long as such Person has been advised of the confidential nature of such information and has agreed to keep such information confidential on substantially the same terms as provided herein (and any non-compliance by such Person with such confidentiality obligation shall be deemed a breach of this provision by such party);

(ii)            to the extent required by Applicable Law or any Governmental Authority to which such party is subject (including complying with any oral or written questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to which such party is subject; provided that such party agrees to give the other parties hereto prompt notice of such request(s), to the extent legally permissible and reasonably practicable, so that the other parties may seek, at their respective cost, an appropriate protective order or similar relief (and, to the extent legally permissible and reasonably practicable, such party shall cooperate with such efforts by the other parties, and shall in any event make only the minimum disclosure required by such Applicable Law or Governmental Authority and advise the relevant disclosee of the confidential nature of the disclosed information));

(iii)            to any sponsor or underwriter and any professional adviser of such sponsor or underwriter, and in the prospectus, announcements or other documents issued or released in connection with the application for listing and dealing in connection with a Public Listing;

(iv)            to the extent related to the tax treatment and tax structure of the transactions contemplated by this Agreement (including all materials of any kind, such as opinions or other tax analyses that the Company, its Affiliates or its Representatives have provided to the Investors relating to such tax treatment and tax structure); provided that the foregoing does not constitute an authorization to disclose the identity of any existing or future party to the transactions contemplated by this Agreement or their Affiliates or Representatives, or, except to the extent relating to such tax structure or tax treatment, any specific pricing terms or commercial or financial information;

(v)            to the extent such disclosure is required for the purpose of any legal proceedings between the parties arising out of this Agreement or the other Transaction Documents; or

(vi)            if the prior written consent of the other parties hereto (in the case of the Company, the Board) shall have been obtained.

(b)         "Confidential Information" means the Transaction Information, any information concerning the Company or any Person that are or become its Subsidiaries, and the financial condition, business, operations or prospects of the Company or any such Persons, in the possession of or furnished to any Investor (including by virtue of its present or former right to designate a director of the Company); provided that the term "Confidential Information" does not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by an Investor or its Representatives in violation of this Agreement, (ii) was available to such Investor on a non-confidential basis prior to its disclosure to such Investor or its Representatives by the Company, or (iii) becomes available to such Investor on a non-confidential basis from a source other than the Company, which source is (at the time of receipt of the relevant information) not, to the best of such Investor's knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company or another Person.

(c)         Each Investor hereby acknowledges that the Confidential Information furnished by or on behalf of the Company and GDSH may contain material non-public information ("MNPI"). Each Investor confirms that (i) each Investor and its Representatives is aware that applicable securities laws of the U.S. and Hong Kong prohibit any Person who is in possession of MNPI of a company from purchasing or selling securities of such company or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person may purchase or sell such securities, and (ii) the Investors will, and the Investors will direct each of its Affiliates and Representatives to, take any action reasonably necessary or appropriate to prevent any violation of applicable securities laws while in possession of any MNPI regarding the Company or GDSH.

(d)         Any confidentiality agreement entered into between any Investor (or its Affiliate) and the Company shall terminate on execution of this Agreement (without prejudice to any rights, Liabilities or obligations that have accrued prior to termination).

Section 8.02       Public Announcements.

(a)         The parties hereto agree that the Company and its Affiliates (including GDSH) may make a public announcement of the transactions contemplated by this Agreement after the Closing, and may publicize the same in marketing materials, newspapers and other publications, provided that no party hereto shall disclose, use, publish or reproduce the names, trademarks, tradenames or logos of any Investor or any variation, adaptation or abbreviation thereof in any public announcements, marketing, advertising or promotion materials or publications without the prior written consent of such Investor.

(b)         Unless required by Applicable Law or already in the public domain (other than as a result of a disclosure by an Investor or its Representatives in violation of this Agreement), no Investors, and none of the Investors' shareholders, Representatives or Affiliates, shall issue any press release or make any public statement relating to this Agreement, any other Transaction Documents or any other agreements referred to herein, or the transactions contemplated hereby or thereby, in each case, without the Company's written approval (which approval shall not be unreasonably withheld), and each Investor shall be liable for any failure of its shareholders, Representatives or Affiliates to comply with the restrictions set forth under this Section 8.02(b).

(c)         Promptly after execution of this Agreement, GDSH will file one or more current reports on Form 6-K with the SEC attaching the announcement press release in compliance with Section 8.02(a) and a copy of this Agreement (without the Schedules) as exhibits, provided that the Company shall offer a reasonable opportunity to the Investor to review and comment on such announcement press release and the Company will consider such comments reasonably proposed by such Investor in good faith before issuing such announcement press release.

Section 8.03       Binding Effect; Assignability; Benefit.

(a)         This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors and permitted assigns.

(b)         Neither this Agreement nor any of the rights, interests, remedies, obligations or Liabilities arising hereunder or by reason hereof may be assigned or delegated, in whole or in part, by operation of law or otherwise, by any party hereto without the prior written consent of the other parties, and any such assignment without such prior written consent shall be null and void, provided that the Investor may assign its rights and obligations under this Agreement to any of its Affiliates that is not a Competitor.

(c)         Except as provided in Section 5.01, Section 5.02 and Section 8.07, nothing in this Agreement, express or implied, is intended to confer on any Person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or Liabilities under or by reason of this Agreement under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong).

Section 8.04       Notices. All notices, requests and other communications to any party shall be in writing and shall be delivered in person, or by an international courier service, or sent by email transmission so long as receipt of such email is requested and received:

If to the Investor, to the address set forth on Schedule 2.01 under the heading "Notices".

If to the Company:

PO BOX 309, Ugland House

Grand Cayman, KY1-1104

Cayman Islands

Attention: Jamie Khoo GC

Email: jamie@gds-services.com

If to GDSH:

F4/F5, Building C, Sunland International

No. 999 Zhouhai Road

Pudong, Shanghai 200137

People's Republic of China

Attention: Cathy Zhang, Legal Counsel

Email: ZhangRuijia@gds-services.com

with a copy (which shall not constitute notice) to:

White & Case

16th Floor, York House, The Landmark

15 Queen's Road Central

Hong Kong

Attention: Daniel Yeh and William Fong

Email: daniel.yeh@whitecase.com; william.fong@whitecase.com

All notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

Section 8.05       Waiver; Amendment. No provision of this Agreement may be waived except by an instrument in writing executed by the party against whom the waiver is to be effective, and no provision of this Agreement may be amended or otherwise modified except by an instrument in writing executed by each of the parties hereto. Any party hereto may at any time irrevocably waive any or all of its rights under this Agreement by delivering a waiver of such rights, which states that such waiver is irrevocable, in writing to each of the other parties hereto.

Section 8.06       Fees and Expenses. All costs and expenses incurred in connection with the preparation of this Agreement, or any amendment hereto or waiver hereof, and the evaluation, negotiation, execution and consummation of the transactions contemplated hereby shall be paid by the party incurring such costs or expenses.

Section 8.07       No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the parties may be corporations, partnerships or limited liability companies, each party hereto covenants, agrees and acknowledges that no recourse under this Agreement shall be had against any former, current or future equity holders, general or limited partners, members, controlling persons, directors, officers, employees, managers, agents or Affiliates of any other party hereto or any former, current or future equity holders, general or limited partners, members, controlling persons, directors, officers, employees, managers, agents or Affiliates of any of the foregoing (collectively "Non-Recourse Persons"), as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other Applicable Law, it being expressly agreed and acknowledged that no personal Liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Non-Recourse Person under this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.

Section 8.08       Governing Law. This Agreement and all matters arising hereunder or in respect hereof shall be governed by, and construed in accordance with, the laws of Hong Kong, without regard to any principles of conflict of laws that would result in the application of any other laws.

Section 8.09       Jurisdiction. Any dispute, controversy, difference or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, performance, breach or termination and the parties' rights and obligations hereunder, or any dispute regarding non- contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration (the "Arbitration") in Hong Kong administered by the HKIAC in accordance with HKIAC Arbitration Rules under the time being in force when the notice of Arbitration is submitted in accordance with those rules (the "HKIAC Rules"). The tribunal shall comprise three (3) arbitrators appointed in accordance with the HKIAC Rules. The seat of the Arbitration shall be Hong Kong. The language of the Arbitration shall be English. Any award shall be final and binding upon the parties concerned. Judgment on the award may be entered and enforced by any court of competent jurisdiction. Each party may at any time request from any competent judicial authority any interim or conservatory measure. The parties agree that all documents and evidence submitted in the Arbitration (including any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless the parties otherwise agree in writing.

Section 8.10       Specific Enforcement. Each party hereto acknowledges that irreparable injury to the other parties hereto may occur in the event that any provision of this Agreement was not performed by any party hereto in accordance with its specific terms or was otherwise breached, and the remedies at law of the other parties for a breach or threatened breach of this Agreement would be inadequate and, in recognition of this fact, any party hereto, without posting any bond, and in addition to all other remedies that may be available at law or in equity, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy that may then be available.

Section 8.11       Exercise of Rights and Remedies. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission or waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after such waiver. Each Investor agrees that, to the extent that it is or becomes entitled to any immunity on the grounds of sovereignty or otherwise based upon its status as an agency or instrumentality of any government from any legal proceeding or arbitration relating to this Agreement from the jurisdiction of any competent court, from service of process, from execution pursuant to a judgment or an arbitral award or from any other legal process in any jurisdiction, such Investor hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity with respect to matters arising with respect to this Agreement or the subject matter hereof. Any waiver, permit, consent or approval of any kind or character on the part of any party hereto of any breach or default under this Agreement or any waiver on the part of any other party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any party hereto, shall be cumulative and not alternative.

Section 8.12       Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including PDF) or other transmission methods and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement shall become effective when each party hereto shall have received counterparts hereof executed by all of the other parties hereto. Until and unless each party has received a counterpart hereof executed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

Section 8.13       Entire Agreement. This Agreement, the Shareholders Deed and the other Transaction Documents constitute the entire agreement among the parties hereto and supersede all prior and contemporaneous agreements and understandings, both oral and written, among the parties hereto with respect to the subject matter hereof and thereof.

Section 8.14       Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 8.15       Exculpation Among the Investors. It is acknowledged and agreed by the parties hereto that the Investors' respective obligations and Liabilities, including their obligations to consummate the Closing and pay their respective Subscription Price are several, and neither joint nor joint and several. No Investor or its Affiliates, officers, directors, partners, agents or employees shall be liable to any Group Company for any breach by any other Investor of any representation, warranty, covenant, agreement or obligation contained in, or in default by any other Investor under, this Agreement, or any action taken or omitted to be taken by any other Investor in connection with the transactions contemplated under the Transaction Documents.

Section 8.16       Further Assurance. Each party hereto agrees to from time to time execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as any other party may reasonably request for the purpose of effectively carrying out the transactions contemplated by the Transaction Documents.

Section 8.17       Use of English Language. This Agreement has been executed and delivered in the English language. Any translation of this Agreement into another language shall have no interpretive effect. All documents or notices to be delivered pursuant to or in connection with this Agreement shall be in the English language or, if any such document or notice is not in the English language, accompanied by an English translation thereof, and the English language version of any such document or notice shall control for purposes thereof.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

THE COMPANY

DigitalLand Holdings Limited


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