AMENDMENT AGREEMENT TO THE SHARE PURCHASE AGREEMENT by and between YATSEN HOLDING LIMITED and CGI IX INVESTMENTS September 11, 2020
Exhibit 10.38
AMENDMENT AGREEMENT TO THE SHARE PURCHASE
AGREEMENT
by and between
YATSEN HOLDING LIMITED
and
CGI IX INVESTMENTS
September 11, 2020
AMENDMENT AGREEMENT TO THE SHARE PURCHASE AGREEMENT
This AMENDMENT AGREEMENT TO THE SHARE PURCHASE AGREEMENT (this “Amendment”) is entered into on September 11, 2020 by and between:
A. Yatsen Holding Limited, an exempted company incorporated under the laws of the Cayman Islands (the “Company”); and
B. CGI IX Investments (the “Investor”).
Each of the foregoing parties is referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS:
A. The Parties and certain other parties thereto have entered into a Share Purchase Agreement on August 23, 2020 (the “Share Purchase Agreement”), pursuant to which, among others, the Company desires to issue and sell to the Investor certain Shares and the Investor desires to purchase such Shares from the Company.
B. The Parties desire to amend certain terms and conditions of the Share Purchase Agreement by mutual agreement and in accordance with Section 10.6 of the Share Purchase Agreement to, among other things, clarify the correct number of Shares and the consideration payable for such Shares and to make such other amendments as set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter set forth, the Parties hereto agree as follows:
| 1. | DEFINITIONS. Except as otherwise expressly provided, capitalized terms used in this Amendment shall have the meanings given in the Share Purchase Agreement. |
| 2. | INTEGRATION. This Amendment shall be read as one with the Share Purchase Agreement so that any reference in the Share Purchase Agreement to “this Agreement” and similar expressions shall include this Amendment. |
| 3. | AMENDMENT. |
| 3.1. | Amendment. With effect from (and including) the date hereof, the Share Purchase Agreement shall be amended by mutual agreement and in accordance with Section 10.6 thereof on the terms set out below: |
| 3.1.1. | The first sentence in Section 2.1 of the Share Purchase Agreement is hereby deleted in its entirety and replaced with the following: |
“Agreement to Purchase and Sell. Subject to the terms and conditions hereof, at the Closing, the Company shall issue and sell to the Investor, and the Investor shall purchase from the Company, at the applicable Purchase Price, 36,667,900 Series E Preferred Shares and 8,041,132 Series Seed Preferred Shares (collectively, the “Purchased Shares”).”
1
| 3.1.2. | The last two sentences in Section 2.1 of the Share Purchase Agreement are hereby deleted in their entirety. |
| 3.1.3. | Section 3.3(a) to 3.3(c) of the Share Purchase Agreement is hereby deleted in its entirety and replaced with the following: |
“(a) Ordinary Shares. A total of 3,698,810,800 authorized Ordinary Shares, (i) 2,737,958,194 of which are designated as Class A Ordinary Shares with par value US$0.00001 each, 149,363,572 of which are issued and outstanding, and 2,588,594,622 of which has not been issued or outstanding; (ii) 960,852,606 of which are designated as Class B Ordinary Shares with par value US$0.00001 each and all of which issued and outstanding.
(b) Preferred Shares. A total of 1,301,189,200 authorized Preferred Shares, (i) 260,210,920 of which are designated as Series Seed Preferred Shares with par value US$0.00001 each; 253,877,920 of which are issued and outstanding, and 6,333,000 of which has not been issued or outstanding; (ii) 66,667,000 of which are designated as Series A-1 Preferred Shares with par value US$0.00001 each and all of which issued and outstanding; (iii) 131,987,050 of which are designated as Series A-2 Preferred Shares with par value US$0.00001 each and all of which issued and outstanding; (iv) 14,503,820 of which are designated as Series B-1 Preferred Shares with par value US$0.00001 each and all of which issued and outstanding; (v) 171,289,239 of which are designated as Series B-2 Preferred Shares with par value US$0.00001 each and all of which issued and outstanding; (vi) 85,351,118 of which are designated as Series B-3 Preferred Shares with par value US$0.00001 each and all of which issued and outstanding, (vii) 87,075,383 of which are designated as Series B-3+ Preferred Shares with par value US$0.00001 each and all of which issued and outstanding, (viii) 273,340,565 of which are designated as Series C Preferred Shares with par value US$0.00001 each; 233,480,782 of which are issued and outstanding, and 39,859,783 of which has not been issued or outstanding; (ix) 66,432,971 of which are designated as Series D Preferred Shares with par value US$0.00001 each and all of which are issued or outstanding; and (x) 144,331,134 of which are designated as Series E Preferred Shares with par value US$0.00001 each but none of which are issued or outstanding.
(c) Options, Warrants, Available Shares. The Company has made available and free of any Liens (i) the Purchased Shares for issuance and sale under the Series E Financing; (ii) such number of Class A Ordinary Shares equal to the total number of authorized Preferred Shares, representing the Conversion Shares, (iii) 249,234,508 Class A Ordinary Shares reserved for issuance under the Employee Share Option Plan; and (iv) 39,859,783 Series C Preferred Shares reserved for issuance of warrants. Other than with respect to the Purchased Shares, the Conversion Shares and Employee Share Option Plan, there are no options, warrants, conversion privileges or other rights or agreements outstanding or under which the Company is or may become obligated to issue any securities of any class or series except as set forth above and except for the rights imposed under the Transaction Documents. Apart from the exceptions noted in this Section 3.3, none of the Company’s outstanding shares, and no shares issuable upon exercise, conversion, or exchange of any outstanding options or other shares issuable by the Company, are subject to any preemptive rights, rights of first refusal, or other rights to purchase such shares (whether in favor of the Company or any other Person), pursuant to any agreement or commitment to which the Company is a party or of which the Company is aware, except for the rights imposed under the Transaction Documents.”
2
| 3.1.4. | Section 10.14(b) of the Share Purchase Agreement is hereby deleted in its entirety and replaced with the following: |
“(b) by the Investor or the Company if the Closing has not been consummated on or before September 12, 2020,”
| 3.1.5. | The table in Schedule A-4 of the Share Purchase Agreement is hereby deleted in its entirety and replaced with the following: |
“
| Name |
Purchase Price |
Class of Purchased Shares |
No. of Purchased Shares | |||
| CGI IX Investments |
US$57,931,127 | Series E Preferred Shares | 36,667,900 | |||
| CGI IX Investments |
US$12,068,873 | Series Seed Preferred Shares | 8,041,132 |
“
| 3.1.6. | The table in Schedule B of the Share Purchase Agreement is hereby deleted in its entirety and replaced with the following: |
“
| Shareholders |
Type of Shares |
Number of Shares (as converted) | ||
| Slumdunk Holding Limited |
Class B Ordinary Shares | 600,500,309 | ||
| Maybe Cat Holding Limited |
Class B Ordinary Shares | 181,961,665 | ||
| Icecrystou Holding Limited |
Class B Ordinary Shares | 90,970,393 | ||
| Allinbeauty Limited |
Class A Ordinary Shares | 50,178,920 | ||
| DSbeauty Limited |
Class A Ordinary Shares | 99,184,652 | ||
| ESOP (reserved) |
Class A Ordinary Shares | 107,544,335 | ||
| Zhen Partners Fund IV, L.P. |
Series Seed Preferred Shares | 126,938,693 | ||
| Series A-1 Preferred Shares | 66,667,000 | |||
| Series A-2 Preferred Shares | 38,677,000 | |||
| Series B-2 Preferred Shares | 15,267,179 | |||
| Zhen Fund COV LLC |
Series C Preferred Shares | 31,889,543 | ||
| United Aspect Limited |
Series A-2 Preferred Shares | 50,350,062 | ||
| Series B-2 Preferred Shares | 17,128,900 | |||
| Banyan Partners Fund III, L.P. |
Series B-1 Preferred Shares | 12,328,247 | ||
| Series B-2 Preferred Shares | 118,059,186 | |||
| Series B-3+ Preferred Shares | 29,312,505 | |||
| Series C Preferred Shares | 24,762,278 | |||
| Series D Preferred Shares | 1,141,125 |
3
| Banyan Partners Fund III-A, L.P. |
Series B-1 Preferred Shares | 2,175,573 | ||
| Series B-2 Preferred Shares | 20,833,974 | |||
| Series B-3+ Preferred Shares | 5,172,795 | |||
| Series C Preferred Shares | 4,369,814 | |||
| Series D Preferred Shares | 201,375 | |||
| HH SPR-XIII Holdings Limited |
Series B-3 Preferred Shares | 85,351,118 | ||
| Series B-3+ Preferred Shares | 52,590,083 | |||
| HH PDI Holdings Limited |
Series Seed Preferred Shares | 42,959,988 | ||
| Series C Preferred Shares | 94,950,199 | |||
| Series D Preferred Shares | 6,654,926 | |||
| CMC Pandora Holdings Limited |
Series Seed Preferred Shares | 16,928,449 | ||
| Series A-2 Preferred Shares | 4,739,966 | |||
| Series C Preferred Shares | 43,404,973 | |||
| VMG Partners IV, L.P. |
Series C Preferred Shares | 28,060,688 | ||
| Series D Preferred Shares | 801,101 | |||
| VMG Partners Mentors Circle IV, L.P. |
Series C Preferred Shares | 728,363 | ||
| Series D Preferred Shares | 20,794 | |||
| Yellow Bee Limited |
Series Seed Preferred Shares | 6,443,998 | ||
| Series C Preferred Shares | 5,314,924 | |||
| Internet Fund V Pte. Ltd. |
Series Seed Preferred Shares | 26,342,928 | ||
| Series A-2 Preferred Shares | 7,376,020 | |||
| Series D Preferred Shares | 40,312,346 | |||
| Green Earth Company Limited |
Series Seed Preferred Shares | 5,214,304 | ||
| Series A-2 Preferred Shares | 1,460,005 | |||
| Series D Preferred Shares | 7,979,402 | |||
| Passion Marbles Limited |
Series Seed Preferred Shares | 26,694,298 | ||
| Series A-2 Preferred Shares | 29,383,997 | |||
| Series D Preferred Shares | 7,979,402 | |||
| LFC Investment Hong Kong Limited |
Series Seed Preferred Shares | 2,355,262 | ||
| Series D Preferred Shares | 1,342,500 | |||
| Total |
2,241,005,557 | |||
“
| 4. | NO OTHER AMENDMENT. |
| 4.1. | This Amendment shall be limited solely to the matters expressly set forth herein and shall not (i) constitute an amendment of any other term or condition of the Share Purchase Agreement or (ii) prejudice any right or rights which the Investor may now have or may have in the future under or in connection with the Share Purchase Agreement. |
| 4.2. | Except to the extent specifically amended herein, the respective provisions of the Share Purchase Agreement shall not be amended, modified, impaired or otherwise affected hereby, and the Share Purchase Agreement and the obligations thereunder are hereby confirmed in full force and effect. |
| 5. | MISCELLANEOUS. |
| 5.1. | Governing Law. This Amendment shall be governed in all respects by the laws of the Hong Kong without regard to conflicts of law principles. |
4
| 5.2. | Dispute Resolution. Section 10.13 of the Share Purchase Agreement shall have effect in this Amendment as if incorporated herein mutatis mutandis. |
| 5.3. | Counterparts. This Amendment may be executed in one or more counterparts and may be delivered by electronic PDF or facsimile transmission, all of which shall be considered one and the same agreement and each of which shall be deemed an original, but all of which together shall constitute one instrument. |
[Signature Page Follows]
5
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first above written.
| THE COMPANY: | ||
| Yatsen Holding Limited | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ (黄锦峰) | |
| Title: | Director | |
[Signature Page to the Amendment Agreement to the Share Purchase Agreement - Yatsen Holding Limited]
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date first above written.
| THE INVESTOR: | ||
| CGI IX Investments | ||
| By: | /s/ Authorized Signatory | |
| Name: | Authorized Signatory | |
| Title: | ||
[Signature Page to the Amendment Agreement to the Share Purchase Agreement - Yatsen Holding Limited]