Attached files
Exhibit 10.04
ACM Research (Shanghai), Inc.
Intercompany Promissory Note
$2,981,259.26
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Issue Date:
March 30, 2018
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For Value Received, and subject
to the terms and conditions set forth herein, ACM Research
(Shanghai), Inc. (“ACM
Shanghai”) unconditionally promises to pay to the
order of ACM Research, Inc. or its assigns (the “Holder,” and together with ACM
Shanghai, the “Parties”), the principal amount
of $2,981,259.26 (the “Loan”), together with all accrued
interest thereon, as provided in this Intercompany Promissory Note
(this “Note”).
This Note is being issued pursuant to the terms of a Warrant
Exercise Agreement, dated as of the Issue Date hereof, by and among
ACM Shanghai, the Holder and Shengxin (Shanghai) Management
Consulting Limited Partnership (the “Warrant Exercise
Agreement”).
1. Definitions.
Capitalized terms used herein shall have the meanings set forth in
this Section 1.
“Default” means any of the events
specified in Section 5
that constitutes an Event of Default or that, upon the giving of
notice, the lapse of time or both pursuant to Section 5
would, unless cured or waived, become an Event of
Default.
“Event of Default” has the meaning
set forth in Section 5.
“Law,” as to any person, means any
law (including common law), statute, ordinance, treaty, rule,
regulation, policy or requirement (including any authoritative
interpretation thereon) of any government of any nation or any
political subdivision thereof (whether at the national, state,
territorial, provincial, municipal or any other level), or any
agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of, or
pertaining to, government, whether now or hereafter in effect, in
each case, applicable to or binding on such person or any of its
properties or to which such person or any of its properties is
subject.
“Maturity Date” means the earlier
of (a) August 17, 2023 and (b) the date on which all amounts under
this Note shall become due and payable pursuant to Section 6.
2. Payment
Dates; Optional Prepayments.
2.1 Payment
Dates. The aggregate unpaid
amount of the Loan, all accrued and unpaid interest on the Loan,
and all other amounts payable under this Note shall be due and
payable on the Maturity Date.
2.2 Optional
Prepayments. ACM Shanghai may
prepay the Loan in whole or in part at any time or from time to
time without penalty or premium by paying the amount of the Loan to
be prepaid together with accrued interest thereon to the date of
prepayment. No prepaid amount may be
reborrowed.
3. Interest.
3.1 Interest
Rate. Except as otherwise
provided herein, the outstanding amount of the Loan shall bear
interest at a rate of 3.01% per annum from the date the Loan was
made until the Loan is paid in full, whether at the Maturity Date,
upon acceleration, by prepayment or otherwise.
3.2 Default
Interest. If any amount payable
hereunder is not paid when due (without regard to any applicable
grace periods), whether at the Maturity Date, by acceleration, or
otherwise, such overdue amount shall bear interest at the rate of
12.0% per annum from the date of such non-payment until such amount
is paid in full.
3.3 Computation
of Interest. All computations
of interest shall be made on the basis of a year of 365 days and
the actual number of days elapsed. Interest shall accrue on the
Loan on the day it is made, and shall not accrue on the Loan for
the day on which it is paid.
3.4 Interest
Rate Limitation. If at any time
and for any reason whatsoever, the interest rate payable on the
Loan shall exceed the maximum rate of interest permitted to be
charged by the Holder to ACM Shanghai under applicable Law, such
interest rate shall be reduced automatically to the maximum rate of
interest permitted to be charged under applicable
Law.
4. Payment
Mechanics. Payment of the Loan
and interest thereon shall be made in lawful money of the United
States of America no later than 5:00 p.m., Pacific time, on the
date on which such payment is due by wire transfer of immediately
available funds to the Holder’s account at a bank specified
by the Holder in writing to ACM Shanghai from time to
time.
5. Events
of Default. The occurrence and
continuance of any of the following shall constitute an Event of
Default hereunder:
5.1 Failure
to Pay. ACM Shanghai fails to
pay (a) any amount of the Loan when due or (b) interest or any
other amount when due and such failure continues for five
days.
(a) ACM
Shanghai commences any case, proceeding or other action (i) under
any existing or future Law relating to bankruptcy, insolvency,
reorganization, or other relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts or (ii)
seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part
of its assets, or ACM Shanghai makes a general assignment for the
benefit of its creditors.
(b) There is
commenced against ACM Shanghai any case, proceeding or other action
of a nature referred to in Subsection 5.2(a)
that (i) results in the entry of an
order for relief or any such adjudication or appointment or (ii)
remains undismissed, undischarged or unbonded for a period of
thirty days.
(c) There is commenced against ACM Shanghai any case,
proceeding or other action seeking issuance of a warrant of
attachment, execution or similar process against all or any
substantial part of its assets that results in the entry of an
order for any such relief that has not been vacated, discharged, or
stayed or bonded pending appeal within thirty days from the entry
thereof.
(d) ACM
Shanghai takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set
forth in Subsection 5.2(a),
5.2(b)
or (c).
(e) ACM
Shanghai is generally not able to, or shall be unable to, or admits
in writing its inability to, pay its debts as they become
due.
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5.3 Judgments.
One or more judgments or decrees shall be entered against ACM
Shanghai and all of such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within thirty
days from the entry thereof.
5.4 Breach.
ACM Shanghai defaults
in any material respect in its performance of any material covenant
or obligation required to be performed or satisfied by it under
this Note or the Warrant Exercise Agreement.
6. Remedies.
Upon the occurrence of any Event of Default and at any time
thereafter during the continuance of such Event of Default, the
Holder may at its option, by written notice to ACM Shanghai,
declare the entire amount of the Loan, together with all accrued
interest thereon and all other amounts payable hereunder,
immediately due and payable, provided that, if an Event of Default described in
Subsection
5.2
shall occur, the amount of the Loan,
and accrued interest thereon, shall become immediately due and
payable without any notice, declaration or other act on the part of
the Holder.
7. Miscellaneous.
7.1 Notices.
All notices, requests or other
communications required or permitted to be delivered hereunder
shall be delivered in writing and in accordance with the Warrant
Exercise Agreement.
7.2 Governing
Law. This Note and any claim,
controversy, dispute or cause of action (whether in contract or
tort or otherwise) based upon, arising out of or relating to this
Note and the transactions contemplated hereby shall be governed by
the laws of the State of Delaware.
(a) ACM
Shanghai hereby irrevocably and unconditionally (i) agrees that any
legal action, suit or proceeding arising out of or relating to this
Note may be brought in the state courts of Delaware and the U.S.
District Court for the District of Delaware and (ii) submits to the
jurisdiction of any such court in any such action, suit or
proceeding. Final judgment against ACM Shanghai in any action, suit
or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment.
(b) Nothing
in this Subsection
7.3
shall affect the right of the Holder
to (i) commence legal proceedings or otherwise sue ACM
Shanghai in any other court having jurisdiction over ACM Shanghai
or (ii) serve process upon ACM Shanghai in any manner authorized by
the laws of any such jurisdiction.
7.4 Venue.
ACM Shanghai irrevocably and unconditionally waives, to the fullest
extent permitted by applicable law, any objection that it may now
or hereafter have to the laying of venue of any action or
proceeding arising out of or relating to this Note in any court
referred to in Subsection 7.3
and the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
7.5 Waiver
of Jury Trial. ACM Shanghai
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS NOTE OR
THE TRANSACTIONS CONTEMPLATED HEREBY WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY.
7.6 Successors
and Assigns. This Note may not
be assigned or transferred by the Holder or ACM Shanghai without
the prior written consent of the other Party. This Note shall inure
to the benefit of, and be binding upon, the Parties and their
permitted assigns.
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7.7 Waiver
of Notice. ACM Shanghai hereby
waives demand for payment, presentment for payment, protest, notice
of payment, notice of dishonor, notice of nonpayment, notice of
acceleration of maturity and diligence in taking any action to
collect sums owing hereunder.
7.8 Interpretation.
For purposes of this Note: (a) the words “include” and
“including” shall be deemed to be followed by the words
“without limitation”; (b) the word “or” is
not exclusive; and (c) the words “herein,”
“hereof,” “hereby” and
“hereunder” refer to this Note as a whole. The
definitions given for any defined terms in this Note shall apply
equally to both the singular and plural forms of the terms defined.
Unless the context otherwise requires, references herein (x) to an
agreement, instrument or other document mean such agreement,
instrument or other document as amended, supplemented and modified
from time to time to the extent permitted by the provisions thereof
and (y) to a statute mean such statute as amended from time to time
and include any successor legislation thereto and any regulations
promulgated thereunder. This Note shall be construed without regard
to any presumption or rule requiring construction or interpretation
against the Party drafting an instrument or causing any instrument
to be drafted.
7.9 Amendments.
No term of this Note may be waived, modified or amended except by
an instrument in writing signed by both of the Parties. Any waiver
of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
7.10 Headings.
The headings of the various Sections and Subsections herein are for
reference only and shall not define, modify, expand or limit any of
the terms or provisions hereof.
7.11 No
Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising on the part of the
Holder, of any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided
by law.
7.12 Electronic
Execution. The words
“execution,” “signed,”
“signature,” and words of similar import in this Note
shall be deemed to include electronic or digital signatures or the
keeping of records in electronic form, each of which shall be of
the same effect, validity and enforceability as manually executed
signatures or a paper-based recordkeeping system, as the case may
be, to the extent and as provided for under applicable law,
including the Electronic Signatures in Global and National Commerce
Act of 2000 (15 USC § 7001 et seq.), the Electronic Signatures
and Records Act of 1999 (N.Y. State Tech. Law §§
301-309), or any other similar state laws based on the Uniform
Electronic Transactions Act.
7.13 Severability.
If any term or provision of this Note is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of
this Note or invalidate or render unenforceable such term or
provision in any other jurisdiction.
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In Witness Whereof, ACM Shanghai
has caused this Note to be signed in its name as of the Issue Date
written above.
ACM Research (Shanghai), Inc.
By: /s/ David H.
Wang
Title:
Chief Executive Officer and President
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