股权购买协议 中英文.docx

83DRAFT DATED NOVEMBER 10, 2014. FOR DISCUSSION PURPOSES ONLY*NOTE: THIS AGREEMENT IS SUBJECT TO INVESTORS DILIGENCE REVIEW*以投资人的尽职调查为准SERIES B PREFERRED SHARE PURCHASE AGREEMENT B 系列优先股股权购买协议（The Draft ）(草案)INVESTOR: SHANGHAI CHN-ISR INVESTMENT& DEVELOPMENT CO., LTD. 上海中以投资发展有限公司COMPANY: CHAKRATEC LTD.2015-02-1212th , February, 2015 THIS SERIES B PREFERRED SHARE PURCHASE AGREEMENT (THIS AGREEMENT), IS MADE AS OF THE 12TH _ DAY OF _,February , 20154, BY AND AMONG (I) CHAKRATEC LTD., A COMPANY ORGANIZED UNDER THE LAWS OF THE STATE OF ISRAEL, REGISTRATION NUMBER 51-488156-4 (THE COMPANY), (II) ILAN BEN DAVID, ISRAELI ID NUMBER 058279977 (ILAN), (III) DAVID PINCU, ISRAELI ID NUMBER 055727119 (DAVID), (IV) NIR ZOHAR, ISRAELI ID NUMBER 058890948 (NIR AND TOGETHER WITH ILAN AND DAVID THE FOUNDERS AND EACH A FOUNDER), AND (V) INSERT NAME OF SPV ESTABLISHEDShanghai CHN-ISR Investment & Development Co., Ltd. (OR ANY OTHER NAME TO BE APPROVED BY THE RELEVANT AUTHORITIES) LIMITED LIABILITY COMPANY WHOLLY OWNED ESTABLISHED BY ZHENGZHOU RUNNER ELECTRIC CO. LTD. BY ZHENGZHOU RUNNER ELECTRIC CO. LTD., ,A TYPE OF ENTITY TO BE INSERTED ORGANIZED UNDER THE LAWS OF tHE PEOPLES REPUBLIC OF CHINA PLACE OF INCORPORATION TO BE INSERTED (THE INVESTOR). THE COMPANY, THE INVESTOR AND THE FOUNDERS ARE REFERRED TO, COLLECTIVELY HEREIN AS THE PARTIES AND SEPARATELY AS A PARTY. B系列优先股股权购买协议于20145年2月12 日由1）CHAKRATEC（依据以色列法成立，注册号为51-488156-4，以下简称“公司”）；2）ILAN BEN DAVID（ ID： 058279977）3）DAVID PINCU, （ID；055727119 ）, (4) NIR ZOHAR,（ ID ： 058890948）和5)SPV上海中以投资发展有限公司（或相关权威机构认证的其他名称）（，由郑州瑞能下属的有限责任公司，郑州瑞能依据注册地中华人民共和国的法律创立的组织，以下简称“投资方”）签订。W I T N E S S E T H:WHEREAS, THE BOARD OF DIRECTORS OF THE COMPANY (THE BOARD) HAS DETERMINED THAT IT IS IN THE BEST INTERESTS OF THE COMPANY TO RAISE ADDITIONAL CAPITAL BY MEANS OF THE ISSUANCE OF SIXTY ONE THOUSAND AND SEVEN HUNDRED TWENTY TWO (61,722XXXX) OF THE COMPANYS SERIES B PREFERRED SHARES, PAR VALUE NIS 0.01 PER SHARE (THE PREFERRED B SHARES), TO THE INVESTOR, AT A PRICE PER SHARE OF US $32.4 (THE PPS), AND AN AGGREGATE PURCHASE PRICE OF XX TWO MILLION US DOLLARS (US$2,000,000) (THE INVESTMENT AMOUNT), AS MORE FULLY SET FORTH IN THIS AGREEMENT; AND鉴于，出于公司利益的考虑，公司董事会决定通过向投资方发行61,722XXX股B 系列优先股来为公司筹集额外资本，票面价值为NIS 0.01，每股32.4XXX美元,购买价格总计200万XXX美元(以下简称”投资总额”)，如下文所示；WHEREAS, THE INVESTOR DESIRES TO INVEST IN THE COMPANY AN AMOUNT EQUAL TO THE INVESTMENT AMOUNT AND PURCHASE THE PURCHASED SHARES (AS DEFINED BELOW) PURSUANT TO THE TERMS AND CONDITIONS MORE FULLY SET FORTH, AND SPECIFICALLY SUBJECT TO THE COMPANYS ACHIEVEMENT OF A CERTAIN MILESTONE AS PROVIDED HEREIN; 鉴于，出于公司利益的考虑，公司董事会决定通过向投资方发行61,722股B 系列优先股来为公司筹集额外资本，票面价值为NIS 0.01，每股32.4美元,购买价格总计200万美元(以下简称”投资总额”)，如下文所示；鉴于，投资方愿意依据下述条款和条件、在公司取得一定里程碑时投资XXX200万美元购买股票.鉴于，本协议签署之时，G-TEK 和CN （如下文定义）双方要向投资方以附件“”的格式递交承诺函，承诺向公司支付OCS 资金残留金额（如下文定义），某种程度上来讲，交割日前支付OCS未支付费用。WHEREAS, CONCURRENTLY WITH THE SIGNATURE OF THIS AGREEMENT, CN (AS DEFINED BELOW) HAS DELIVERED TO THE INVESTOR A COMMITMENT LETTER IN THE FORM ATTACHED HERETO AS SCHEDULE 2.1.13 WHEREBY IT HAS COMMITTED TO TRANSMIT TO THE COMPANY THE BALANCE OF THE OCS FUNDING RESIDUAL AMOUNT (AS DEFINED BELOW) IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND THEREIN. 鉴于，本协议签署之时， CN XXXX（如下文定义）要向投资方以附件“2.1.13”的格式递交承诺函，承诺向公司支付OCS 资金残留金额（如下文定义）NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS SET FORTH HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS: 现在,在考虑到双方的承诺和契约规定，双方据此同意如下： ISSUE AND PURCHASE OF SHARES. 股票的发行和购买1.1. ISSUE AND PURCHASE OF SHARES. 股票的发行和购买SUBJECT TO THE TERMS AND CONDITIONS HEREOF, THE COMPANY SHALL ISSUE AND ALLOT TO THE INVESTOR, AND THE INVESTOR SHALL PURCHASE FROM THE COMPANY, AN AGGREGATE OF SIXTY ONE THOUSAND AND SEVEN HUNDRED TWENTY TWO (61,722) OF THE COMPANYS SERIES B PREFERRED SHARES (THE PURCHASED SHARES), AT A PISSUE AND PURCHASE OF SHARES. 股票的发行和购买SUBJECT TO THE TERMS AND CONDITIONS HEREOF, THE COMPANY SHALL ISSUE AND ALLOT TO THE INVESTOR, AND THE INVESTOR SHALL PURCHASE FROM THE COMPANY, AN AGGREGATE OF SIXTY ONE THOUSAND AND SEVEN HUNDRED TWENTY TWO (61,722xxxx) OF THE COMPANYS SERIES B PREFERRED SHARES (THE PURCHASED SHARES), AT A PRICE PER SHARE EQUAL TO THE PPS, REFLECTING A PRE-MONEY VALUATION OF THE COMPANY OF EIGHT MILLION US DOLLARS (US$8,000,000)xxx AND CALCULATED ON A FULLY DILUTED BASIS (AS DEFINED BELOW), FOR THE AGGREGATE INVESTMENT AMOUNT. THE CAPITALIZATION TABLE OF THE COMPANY REFLECTING THE ISSUED AND OUTSTANDING SHARE CAPITAL OF THE COMPANY ON A FULLY DILUTED BASIS (AS DEFINED BELOW), IMMEDIATELY PRIOR TO AND IMMEDIATELY FOLLOWING THE CLOSING (AS DEFINED BELOW), IS ATTACHED HERETO AS SCHEDULE 1.1 (THE CAPITALIZATION TABLE).1.2. 根据相关条款及条件,公司应对投资方发行并分配股票,投资方应从公司购买总计61,722xxxx股B系列优先股(以下简称”购买的股票”),每股价格为32.4xxx美元,反映出在全面摊薄基础上，公司交易总额的交易前市值为8百万xxx美元.附件1.1(简称”资产表”)公司的资产表反映了交易结束前后在全面摊薄基础上公司已发行的流通股本.rice per Share equal to the PPS, reflecting a pre-money valuation of the Company of Eight Million US Dollars (US$8,000,000) and calculated on a Fully Diluted Basis (as defined below), for the aggregate Investment Amount. The capitalization table of the Company reflecting the issued and outstanding share capital of the Company on a Fully Diluted Basis (as defined below), immediately prior to and immediately following the Closing (as defined below), is attached hereto as Schedule 1.11.11.1 (the Capitalization Table).1.3. 根据相关条款及条件,公司应对投资方发行并分配股票,投资方应从公司购买总计61,722股B系列优先股(以下简称”购买的股票”),每股价格为32.4美元,反映出在全面摊薄基础上，公司交易总额的交易前市值为8百万美元.附件1.1(简称”资产表”)公司的资产表反映了交易结束前后在全面摊薄基础上公司已发行的流通股本 For the purposes of this Agreement, Fully Diluted Basis shall mean all issued and outstanding share capital of the Company, including (i) all ordinary shares of the Company, par value of NIS 0.01 each (the Ordinary Shares), (ii) all Preferred A shares of the Company, par value of NIS 0.01 each (th 1.2 For the purposes of this Agreement, Fully Diluted Basis shall mean all issued and outstanding share capital of the Company, including (i) all ordinary shares of the Company, par value of NIS 0.01 each (the Ordinary Shares), (ii) all Preferred A shares of the Company, par value of NIS 0.01 each (the “Preferred A Shares”), and all Preferred B Shares, (iii) all securities convertible into Ordinary Shares being deemed so converted, (iv) all convertible loans being deemed so converted (v) all options, warrants and other rights to acquire shares or securities exchangeable or convertible for shares of the Company, being deemed so allocated, exercised and converted, and (vi) all options reserved for (including any unallocated option pool) and/or allocated for issuance to employees, consultants, officers, service providers or directors of the Company pursuant to any current share option plans, agreements or arrangements heretofore, prior to the Closing, approved by the Board of the Company (the ESOP Pool) deemed converted and/or granted and/or exercised. 1.4. “全面摊薄基础”代表公司已发行流通的股票.包括:1)所有的普通股,每股票面价值为NIS0.01;2)公司的A轮优先股和B轮优先股,每股票面价值为NIS0.01;3)所有被转换为普通股的证券;4)所有可转换贷款;5)被分配,行使和转换的所有期权,许可证或可取得可转换股票的其他权益; 6)在交割前，由公司董事会批准的、根据任何目前或未来激励性股票期权计划的协议或安排,为公司员工,顾问,高级管理人员,服务提供商,董事所保留的或直接向其分配的可被转化,授予,或行使的期权.1.5. 1.3e “Preferred A Shares”), and all Preferred B Shares, (iii) all securities convertible into Ordinary Shares being deemed so converted, (iv) all convertible loans being deemed so converted (v) all options, warrants and other rights to acquire shares or securities exchangeable or convertible for shares of the Company, being deemed so allocated, exercised and converted, and (vi) all options reserved for (including any unallocated option pool) and/or allocated for issuance to employees, consultants, officers, service providers or directors of the Company pursuant to any current or future incentive share option plans, agreements or arrangements heretofore or hereafter, prior to the Closing, approved by the Board of the Company (the ESOP Pool) deemed converted and/or granted and/or exercised. 1.6. “全面摊薄基础”代表公司已发行流通的股票.包括:1)所有的普通股,每股票面价值为NIS0.01;2)公司的A轮优先股和B轮优先股,每股票面价值为NIS0.01;3)所有被转换为普通股的证券;4)所有可转换贷款;5)被分配,行使和转换的所有期权,许可证或可取得可转换股票的其他权益; 6)在交割前，由公司董事会批准的、根据任何目前或未来激励性股票期权计划的协议或安排,为公司员工,顾问,高级管理人员,服务提供商,董事所保留的或直接向其分配的可被转化,授予,或行使的期权.1.7. 1.8. The Investment Amount shall be invested by the Investor in the Company in three installments as follows: (i) an amount of One Million US Dollars (US$1,000,000) (the “First Installment”) shall be paid to the Company at and subject to the Closing as defined in Section 2 herein, in consideration for the issuance to the Investor of 30,861 (Thirty Thousand Eight Hundred and Sixty One)xxxx Preferred B Shares (the Closing Purchased Shares), (ii) an amount of Six Hundred Thousand US Dollars (US$600,000) (the “Second Installment”) shall be paid to the Company within 6 (six )xx months following the Closing Date (the Second Installment Date) in consideration for the issuance to the Investor of 18,517 (Eighteen Thousand Five Hundred and Seventeen) xxx Preferred B Shares (the Second Installment Shares), and (iii) the remaining amount of Four Hundred Thousand US Dollars (US$400,000) (the “Third Installment”) shall be paid to the Company at and subject to the Third Installment Date (as defined below), in consideration for the issuance to the Investor of xxxx12,3344 (Twelve Thousand Three Hundred and Thirty Forty Four) Preferred B Shares (the Third Installment Shares).1.9. 投资方的注资金额应分三期投资如下:1)在交割时应投资1百万xxxx美元(以下简称”首期投资”) (根据第2章定义的“交割”的定义),作为对价，投资方将享有30,861股Bxxx 轮优先股(以下简称”交割购买的股票”).2)应在交割日结束后的6个xx月内投资60万美元(以下简称”二期投资”),投资方将获得18,517xxxx股B轮优先股(以下简称”二期投资股票”);3)剩下的40万美元作为第三期投资应于三期投资日支付,投资方可获得12,334股B轮xxxx优先股(以下简称”三期投资股票”)1.10. The term Third Installment Date herein shall mean 60 days following the later of (i) the Acceptance Date and (ii) the completion of a successful good faith negotiation by and between the Company and the Investors and mutually agreeing on the terms and condition of the Distribution Agreement (as defined in Article 10.1). It being clarified that, unless otherwise agreed by the Parties, in the event that the Third Installment is not transferred to the Company on or prior to the Third Installment Date, the Investors right to receive the Third Installment Shares in consideration for the Third Installment shall expire. 1.11. and (ii) the completion of a successful good faith negotiation by and between the Parties and mutually agreeing on the terms and condition of the Distribution Agreement (as defined in Article 10.1). Note: The deleted section was not in accordance with the agreed upon Term Sheet 三期投资日指的是验收日后的60天内及2）公司及投资方友好协商公同同意代理协议的期限和条件（如章程10.1中定议）.需要澄清的是,如果双方同意,在三期投资日或之前, 如果未向公司投资第三笔资金，那么公司收到第三期投资股份的权力将到期。.（删除的部分与TS条款不相符）The term Acceptance Date herein shall mean the date of receipt and acceptance by Investor, if any, no later than 12 months following the Second Installment Date, of a Ready To Be Sold Product (as defined below). The Investor shall be entitled, at its sole discretion, to extend the said 12 month period for an additional 2 month period, if and to the extent the Ready To Be Sold Product has not been received and accepted by the Investor within said period of 12months.The term Acceptance Date herein shall mean the last date of receipt and acceptance by Investor, if any, no later than 7 months following the Second Installment Date, of a Ready To Be Sold Product (as defined below). The Investor shall be entitled, at its sole discretion, to extend the said 7-month period. If and to the extent the Ready To Be Sold Product notice has not been contemplated in a timely manner, one or more times by written notice/s to the Company which shall set forth the applicable extension period. 这里的验收日指的是投资方收到预售产品（如下文定义）的日期,且不应迟于二期投资日后的712个月内。如果在所说的12个月内，投资商没有收到也不接受这个预售产品，投资商可自行决定在所说的12个月的期限基础上再延长2个月。The term Ready To Be Sold Product herein shall mean a prototype of the Companys product, which meets the national or industrial standards required for the products commercialization in the Peoples Republic of China (China) as approved by the Investor at its direction .It is clarified that failure of the company to provide the Investor with a Ready to Be Sold Product within 14 months following the Second Installment Date shall in no way derogate from the obligation of the Company to make commercial reasonable efforts to provide the Investor with a Ready To Be sold Product at a later stage in accordance with the agreement between the Parties with respect to the Commercialization in China Rights as set forth in Section 10 below. 这里的预售产品指的是公司产品的原型，并符合产品在中国商业化需求的国际或行业标准，由投资方自行决定。需要澄清的是如果公司在二期交割日的14个月内未向投资方提供预售产品，那么根据双方在协议第10条中国商业化权利中所规定，公司仍有义务为了产品的商业化作出努力，在后续阶段向投资方提供预售产品得到投资方指定的质量检测机构的批准（质量检测机构定义如下）。如果投资方不能确定相关的国际或行业标准，投资方应定义产品在中国商业化需求的行业标准，根据相关的中国标准化管理部门提出标准，抽质量检测机构提交产品以获得批准。质量检测机构指的是如下：）The term Ready To Be Sold Product herein shall mean a prototype of the Companys product, which the Board has determined is prepared for submission of an application to obtain any applicable regulatory approvals, certifications and standards required for the products commercialization in the Peoples Republic of China (China), is available to the Companymeets the standards required for the products commercialization in the Peoples Republic of China (China) as approved by an independent third party mutually acceptable to the Company and the Investor (the Expert). If the Company and the Investor fail to reach an agreement on the identity of the Expert, then the Expert shall be appointed by _ upon request by either the Company or the Investor. The decision of the Expert shall be binding on the Company and the Investor, shall be final and non-appealable. Note: Section revised to reflect the agreed upon definition in the Term Sheet预售产品指的是公司产品的原型，该产品原型董事会决定准备提交以获得产品在中国商业化所需要的常规支持，资质和标准，该产品也可适用于公司。这里的预售产品指的是公司董事会决定提交的,用以申请取得产品在中国商业化所需的监管机构的批准,认证和标准的样品. 该产品也可适用于公司。备注:这部分被修改以与TS条款要一致Section 1.1 In the event that the aggregate Investment Amount is not received by the Company, solely due to the a breach of this Agreement by the Investor, then the increase in the ESOP Pool (from 5% to 10%) shall be adjusted by a pro rata allocations of the extra amount of the ESOP Pool shares that are beyond 10% (if any)to the Companys shareholders, other than the Investor, at that time in the manner set forth in Schedule 1.4. Section 1.2 如果仅仅由于投资方违反了协议导致公司没有收到全部的投资额,员工持股份额超过10%的部分(从5%到10%)将按比例分配给公司股东而非投资方。(从5%到10%)将依据公司股东(非投资方)的持股比例作出调整（届时调整方式参见附件1.4）.In the event that the aggregate Investment Amount is not received by the Company, solely due to the a breach of the this Agreements by the Investor, then the increase in the ESOP Pool (from 5% to 10%) shall be adjusted by a pro rata allocations of shares to the Companys shareholders, other than the Investor, at that time in the manner set forth in Schedule 1.4.2. The Cloosing. 交割/结束The closing of the sale and purchase of the Purchased Shares (the Closing) shall take place at the offices of Meitar Liquornik Geva Leshem Tal, at 16 Abba Hillel Road, Ramat Gan 52506, Israel (“Meitars Office”) xxxx or remotely via the exchange of documents and signatures, at a time and on a date to be specified by the Parties, which shall be no later than the third (3rd) Business Day after the satisfaction or waiver of all of the conditions set forth in Sections 777 and 8 88 below to be satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing) or at such other time and place as the Company and the Investor mutually agree upon in writing , but in any event, no later than 45 days following the signing of this Agreement (the date of the Closing being herein referred to as the Closing Date). Business Day shall mean any day other than Friday, Saturday, Sunday or any other day on which banks are legally permitted to be closed in Israel or in China. It is hereby clarified that to the extent the conditions set forth in Sections 7 and 8 below have not been satisfied (and/or waived as set forth herein) as of the Closing Date, the Parties agree that this Agreement will be of no further force and effect and each of the Parties agree that this Agreement will be of no further force and effect and each of the hereby irrevocably waive any demand or claim against the other Party in this respect except with respect to any breach by any Party of any pre-closing obligations under this agreement that occurred prior to the Closing Date. Addition 股票购买的售卖结束地点是美泰律师事务所(at 16 Abba Hillel Road, Ramat Gan 52506, Israel)xxxx 或通过远程交换文件和签名，具体日期双方决定,但不得晚于如下7和8条规定条件圆满完成或免除（除了依其特点应于交割满足的条件）后的3个工作日,或者投资方和公司书面商定的日期和地点,但是任何情况下不得超过本协议签署后的45天.工作日可为任何一天,但不包括周五,周六和周日或以色列或中国银行的法定非营业时间.此处需要澄清的是,如果截止交割日7条和8条规定下的条件不满意(和/或放弃此处规定),双方同意此协议不具有效力,此处的任何一方不可撤销的放弃对对方的要求或本协议交割前出现的不利于预交割义务一方。2.1. Deliveries and Transactions at the Closing. 交割时的交付和交易 2.2. At the Closing, the following transactions shall occur simultaneously (no transaction shall be deemed to have been completed or any document delivered until all such transactions have been completed and all required documents delivered): 交割时将同时发生如下交易（仅当交易完成、所有被要求的资料递交,交易才被视为完成，材料才被视为送达.）Deliveries and Transactions at the Closing. At the Closing, the following transactions shall occur simultaneously (no transaction shall be deemed to have been completed or any document delivered until all such transactions have been completed and all required documents delivered, in form to the satisfaction of the Investor and its counsel):2.1.1 Shareholders Resolution. 股东决议 True and correct copies of duly executed resolutions of the Companys shareholders, in the form attached hereto as Schedule 2.1.1 2.2, shall be delivered to the Investor, by which, inter alia: (i) the authorized share capital of the Company sh