Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
For the fiscal year ended December 31, 2019.
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
OR
☐ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of event requiring this shell company report
For the transition period from to
Commission file number: 001-38591
Pinduoduo Inc.
(Exact name of Registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
Cayman Islands
(Jurisdiction of incorporation or organization)
28/F, No. 533 Loushanguan Road, Changning District
Shanghai, 200051
People’s Republic of China
(Address of principal executive offices)
Jianchong Zhu
Tel: +86-21-52661300
Email: investor@pinduoduo.com
28/F, No. 533 Loushanguan Road, Changning District
Shanghai, 200051
People’s Republic of China
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
Title of each class
American Depositary Shares (one
American
depositary share representing four Class A
ordinary shares, par value US$0.000005
per share)
Class A ordinary shares, par value
US$0.000005 per share*
Ticker Symbol
PDD
Name of each exchange on which registered
The Nasdaq Stock Market LLC
(The Nasdaq Global Select Market)
The Nasdaq Stock Market LLC (The Nasdaq)
(The Nasdaq Global Select Market)
*
Not for trading, but only in connection with the listing on The Nasdaq Global Select Market of American depositary shares.
Securities registered or to be registered pursuant to Section 12(g) of the Act.
None
(Title of Class)
Table of Contents
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
None
(Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 2,575,580,988
Class A ordinary shares, par value US$0.000005 per share and 2,074,447,700 Class B ordinary shares, par value US$0.000005 per share, were outstanding as of December 31,
2019.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
⌧ Yes ☐ No
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
☐ Yes ⌧ No
⌧ Yes ☐ No
Indicate by check mark whether the registrant has submitted electronically, if any, every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of
this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
⌧ Yes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ⌧
Accelerated filer ☐
Non-accelerated filer ☐
Emerging growth company☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act.
† The term “new or revised financial accounting standard: refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification
after April 5, 2012.
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ⌧
International Financial Reporting Standards as issued
by the International Accounting Standards Board ☐
☐ Other
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.
☐ Yes ☐ No
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
☐ Item 17 ☐ Item 18
☐ Yes ⌧ No
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS)
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934
subsequent to the distribution of securities under a plan confirmed by a court.
☐ Yes ☐ No
Table of Contents
TABLE OF CONTENTS
LETTER TO SHAREHOLDERS
INTRODUCTION
FORWARD-LOOKING INFORMATION
PART I
Item 1.
Item 2.
Item 3.
Item 4.
Item 4A.
Item 5.
Item 6.
Item 7.
Item 8.
Item 9.
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Item 15.
Item 16A.
Item 16B.
Item 16C.
Item 16D.
Item 16E.
Item 16F.
Item 16G.
Item 16H.
PART II
Identity of Directors, Senior Management and Advisers
Offer Statistics and Expected Timetable
Key Information
Information on the Company
Unresolved Staff Comments
Operating and Financial Review and Prospects
Directors, Senior Management and Employees
Major Shareholders and Related Party Transactions
Financial Information
The Offer and Listing
Additional Information
Quantitative and Qualitative Disclosures about Market Risk
Description of Securities Other than Equity Securities
Defaults, Dividend Arrearages and Delinquencies
Material Modifications to the Rights of Security Holders and Use of Proceeds
Controls and Procedures
Audit Committee Financial Expert
Code of Ethics
Principal Accountant Fees and Services
Exemptions from the Listing Standards for Audit Committees
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Change in Registrant’s Certifying Accountant
Corporate Governance
Mine Safety Disclosure
PART III
Item 17.
Item 18.
Item 19.
Financial Statements
Financial Statements
Exhibits
i
1
7
8
9
9
9
9
59
85
85
103
117
120
121
122
133
133
135
135
135
136
136
137
137
137
137
137
137
138
138
138
138
138
Table of Contents
What time?
LETTER TO SHAREHOLDERS
In February, the world learned a new word, “COVID-19”, which upended our lives. As I write this, half of the world
remains confined at home, waiting for the tiny virus that causes COVID-19 to leave us. During the early days of the
outbreak, as we waited in solidarity, we eagerly hoped to return to normal. But as the world has been put on hold week
after week, we start to forget time.
We cannot help but ask ourselves, what is the time we are in now and what is time?
We are in a time of crisis – of division, misinformation, and chaos. The virus has caused countless conflicts and
contrasts as we watch the news around us and worldwide. It is an unprecedented time to most of us. Yet if we put it in the
context of the human history, it might just be a normal incident, a drop in the ocean.
This virus is a messenger by Mother Nature. Out of self-protection and preservation, our bodies desperately fought it
using all the strength and energy available. Soon enough, the war against this seemingly unstoppable virus extended from
our own bodies to the broader organisms that make up our society (if we see every institution as a living organism made up
of people and relationships with a mission and purpose). Companies, governments, countries, big and small, are all
scrambling in their own ways to combat this life-threatening virus. In these attempts, we possibly have unintentionally
introduced more damage to ourselves.
These all started with an almost invisible virus, a tiny messenger carrying some information (RNA) and a negligible
amount of energy that, independent of a host, cannot even replicate. It is in stark contrast with nuclear threat, the power we
feared for decades. Which is more capable of greater and more prolonged damage to our human society then - a mushroom
cloud representing massive destructive energy, or a “messenger” with virtually no energy?
We cannot help but wonder if this is a lesson purposefully delivered, a punishment, a redemption, or simple irony? No
matter what it is, it is surreal to me.
Time for new
When Einstein wrote down his famous E = MC2, he elegantly (in some sense also arrogantly) depicted a physical
world in his mind. However, what he did not explain in his theory of relativity is the relationship between the human mind
and the physical world, nor the relationship between energy and information.
Today, in this bizarre time, millions of people are staying at home, physically cut off from their families and friends.
Yet we are connected and unified in spirit through shared sentiment, which in turn affects the physical world. The
boundaries between the virtual and physical worlds are unprecedentedly blurred, and we are beginning to see (not just
envision) a new world. In this new world, the phrase “virtual reality” is obsolete. Reality has become virtual and virtual has
become part of reality. Similarly, the distinction between humanity’s physical needs and spiritual needs is also becoming
vague.
When this tiny virus was dropped into our world, it acted just like a catalyst in a test tube, accelerating the formation
of a whole new world. Inevitably, some dimensions of the previous world are being restructured, some rules are being
rewritten. The impact of this sweeping force will fundamentally and permanently change the world we are in now. Just like
what I explained in the previous shareholder letters about PDD’s formation, new models are bound to emerge and grow in a
whole new setup. We are indeed seeing the phasing out of some as new ones emerge. It is the time of reestablishment.
1
Table of Contents
Feel the time
1.
Time with an arrow/direction
Human beings have long used reason to try to understand and control the world. In many cases, we succeeded, for
example, science. In science, we strive to detach ourselves from the physical world we are in, to watch it as if we are a
higher being “objectively” observing, understanding, and defining the world into a finite number of equations. In this
framework, time is a reversible parameter in the equation -t = (-)t. It is merely a parameter in an equation to describe a
predetermined trajectory of an object.
However, when an almost invisible virus awoken us to the reality that we are not above the world, but just a negligible
part of the world to be observed, the only thing we can do is to sit still and let time carry its course. We then realize time is
not really a parameter in an equation, but an irreversible vector. It is a silent and relentless directional force driving
everything we see and feel. It effortlessly creates asymmetry, irreversibility and mortality, no matter how stubbornly and
desperately we yearn for symmetry and immortality.
While the first law of thermodynamics (∆U = Q-W) gives us a sense of control and certainty, the second law (∆S ≥ 0)
humbles us to acknowledge the unknown beyond just force and mass we used to define our physical world. Entropy (S)
also relates to information. I am not sure if entropy relates to the spiritual world, but it does help us feel and comprehend
time. Again, it is not a reversible parameter, but a silent and irreversible driving force beyond and behind both the physical
and the spiritual world.
2.
Time, crowd and uncertainty
When Newton revealed F = M(dV/dT), it gave us a delusive sense of control, or at least it allowed our wishful thinking
that we can finally harness force. We no longer have to worry, because every object has a calculable trajectory determined
by its position, mass, velocity and force. We assume each object’s current state fully encompasses and explains its past and
that each object is independent. With that, large number of interactions among large number of objects over time would
increase complexity and appear chaotic and uncertain, hence probabilistic. It seems that time has created this chaos and
uncertainty. And probability is just a statistical aggregation of the trajectories of a large number of objects.
However, when we are isolated at home, waiting with anxiety and unsettling emotions, we start to doubt whether the
notion of each object being independent is really a valid assumption in our attempt to understand and explain the world. In
our yearning for certainty, we have conveniently chosen to accept some assumptions, such as independence among each
object, that can help us explain the world. Our desire for certainty is so strong that we start believing it is truth.
But what if probability is a fundamental feature of each object, rather than a result of statistical aggregation? What if
the large number of objects is intrinsically intertwined and interrelated? Just like our human society, no matter how
independent each individual is, we are intrinsically connected both physically and spiritually. And these connections define
who we are and our existence.
Because of these connections, the divide-and-conquer approach is no longer effective to reduce uncertainty. Instead,
we see the large number of interactions among individuals over time becoming a force that brings order and certainty to the
society. Again, we feel the force and magic of time.
Seize the time
When COVID-19 swept the earth, every organism was confronted with the brutal reality of Mother Nature. Some of us
who are relatively young cannot help but to feel grateful and lucky. This is not to say that we see an opportunity to take
advantage of during the crisis. In fact, I despise the saying “don’t waste a crisis”. A crisis is a crisis. Nobody can come out
as a winner in the midst of a catastrophe. Any wishful thinking to capture the “opportunities” (or exploiting loopholes) to
benefit oneself seems foolish in the face of time. It is akin to a presumptuous gambler trying to outsmart time at a casino.
2
Table of Contents
Instead, we feel the urge to work even harder. Because we, more than ever, understand and appreciate how precious
youth is. More than ever, we realize that we now have our duty to fulfil. We need to demonstrate that our generation is
innovative and different, that in this new world, new species and new creatures are bound to emerge and grow. Mother
Nature will flourish and progress, regardless of any individual’s will. Understanding these rules of nature does not make us
feel superior, nor does it give us the power to rule and order. On the contrary, it humbles us to admit that we are just part of
a natural evolution of the world. One poet captured it all: “As I silently look back, all the sorrows and joy, all the twists and
turns, of life, vanished like sands in the desert. And now I know, all I have accomplished, is just a part of life.”
With this perspective and in this new world, we feel humble and calm. We are tremendously grateful for our precious
youth, and we feel the weight of our duty. As a result, we will be more than ever committed to investing in the future, and
to be part of the driving force to the new world we are seeing. The journey has only started.
This is our Carpe Diem. This is our C’est La Vie.
Colin Zheng Huang
On behalf of Pinduoduo
April 20, 2020
P.S. I attach the letter from our IPO. It is still the beginning, and our principles stay the same.
3
Table of Contents
2018 LETTER TO SHAREHOLDERS
(Reprinted from the IPO Prospectus)
Pinduoduo is not a conventional company. We founded Pinduoduo when the China market accepted the status quo of
the existing e-commerce landscape and thought its formative phase had come to an end. Within three years, Pinduoduo has
attracted over 300 million active buyers and over 1 million merchants through a new shopping format and experience. This
exponential growth shows unlimited potential of our platform. As our three-year-old platform is still burgeoning, we know
we face many obvious challenges and uncertainties ahead. Hence, why are we bringing Pinduoduo into the ebbs and flows
of the capital markets so soon? We’d appreciate you hearing our thoughts in this letter.
● We think the e-commerce business is closely tied with social impacts and responsibilities, and therefore its growth
and value should be shared with the public;
● We believe in the tremendous potential of our platform; therefore, if we take a long-term view, there is no
difference for our listing in three years, five years or longer. On the contrary, with public scrutiny and regulatory
supervision, we may grow better and stronger; and
● We envision Pinduoduo to be an organization that reports to the public. It should create value for the public, rather
than being a show-off trophy for a few or carrying too much personal color. We want it to be an independent
organization that brings value to the society with its unique organizational structure and corporate culture. Most
importantly, it should continue to strive to better itself.
Now as the founder, I would like to give you more color on my observation and vision for Pinduoduo so as to give you
a more concrete understanding of the company you are investing into.
What does Pinduoduo do?
● Pinduoduo dedicates itself to creating a commingled “space” between cyberspace and physical space, where users
can find the most value-for-money merchandise that meet their different needs and derive happiness;
● Pinduoduo leverages a platform and an ecosystem comprised of hundreds of millions of users, merchants, platform
management personnel/operators and platform infrastructure/service providers; while each player is
interdependent with one another, all of them evolve and improve as they constantly try to balance cost-
effectiveness, efficiency, user experience and satisfaction;
● Pinduoduo’s survival depends on the value it creates for its users; I hope our team wakes up feeling anxious every
day, never because of share price volatilities, but because of their constant fear of users departing if we are unable
to anticipate and meet users’ changing needs; and
● Pinduoduo is dedicated to investing in the future and will always focus on the long term. It might appear too
aggressive or too conservative at times. However, it always follows the basic and simple principle—growing its
long term intrinsic value.
Company Value
Pinduoduo’s core value is “(cid:0)(cid:0)” (Ben Fen). It is difficult to express it perfectly in English, but it essentially means to
adhere firmly to one’s own duties and principles. There are several layers of meaning here:
● Be honest and trustworthy;
● Discharge our own duties and responsibilities regardless of others’ conduct;
4
Table of Contents
● Insulate our minds from outside pressures so that we can focus on the very simple basics of what we should be
doing;
● Never take advantage of others even when we are in a position to do so;
● Self-reflect and take responsibilities when problems arise instead of blaming others.
Specifically for Pinduoduo, the management’s (cid:0)(cid:0) (Ben Fen) is to relentlessly focus on value creation for our
consumers. We may not always be understood, but we always do things out of goodwill and do no evil.
Going forward
In the past three years, Pinduoduo has established and promoted a new e-commerce concept and experience of “team
purchase” (or “(cid:0)”, “pin”). We can reasonably expect that it would evolve into a variety of “pin” formats. We also hope
that other innovative formats for different user scenarios will be created just like how we have created “pin” today.
If you close your eyes and visualize the next stage for Pinduoduo, it would be an exemplification of a multi-
dimensional space, seamlessly integrating cyberspace and the physical space. It would be a combination of “Costco” and
“Disneyland” (value-for-money and entertainment combined), driven by a distributed network of intelligence agents
(versus the popular super-brain-like centralized AI system). It not only matches information efficiently, but also constantly
puts the social interactions of the universe into consideration to make the entire experience more enjoyable.
As part of the process to constantly meet users’ needs, we are highly aligned to be the driving force to improve the
efficiency and quality of the supply chain. One good example would be the agricultural industry. China has relatively less
arable land per capita given its population and landscape. This is different from countries like the United States, where
large-scale farms are prevalent, and the production and transportation of agricultural products could be highly
industrialized. We find “pin” an effective solution to aggregate consumer demand, match them with batches of agricultural
produce, and mobilize China’s well-penetrated and affordable logistics capability to have perishable and fresh produce
shipped directly from farms to users and bypass multiple layers of distribution. This not only enhances user experience, but
more importantly, helps to turn small scale agriculture production of different quality, variety, and volume into a semi-
customized batch processing mechanism. It lowers the unnecessary costs of agricultural consumption and potentially
makes small scale customized services viable. The social impact and value to our society would far exceed our business
success or the perceived valuation of the company. We are excited by the small impact we see today, and think this would
be a trend even beyond agriculture.
Appreciation for our investors
We are grateful to those who are willing to invest in Pinduoduo after reading through the utopian ideas above. It is not
easy to take the leap of faith believing in such an unconventional company, which strives to meet both economic and social
needs of users, and to make a positive impact to the society. The pursuit and focus of our long-term vision and intrinsic
value may not always translate into near-term profits. Instead, we hope to show you the true colors of our company no
matter how bumpy or rough the numbers may seem to be. We ask you to ride the journey with us for the long term. We
believe it will be wonderful.
So, what should you expect from Pinduoduo as an investor?
First of all, you can reasonably believe that we are far from the best we could achieve. In fact, we are probably at our
most rudimentary level of services now if we look forward in 10 years’ time. Yet, many of our users have chosen to believe
in us. We are encouraged and have every reason to believe that as we work hard day after day to improve our services,
more and more users will stick with us, believe in us.
Secondly, you should expect a team with passion that is trustworthy and always focuses on serving users and our
company’s intrinsic value. We have the courage and the ability to invest in long-term opportunities.
5
Table of Contents
Pinduoduo, as a growing organization, will always dedicate itself to do the right things, to create value for our society,
and to make this world a better and happier place.
Colin Zheng Huang
On behalf of Pinduoduo
6
Table of Contents
INTRODUCTION
Unless otherwise indicated or the context otherwise requires, references in this annual report to:
● “active buyers” in a given period are to user accounts that placed one or more orders (i) on our Pinduoduo mobile
app or (ii) through social networks or access points in that period, regardless of whether the products and services
are actually sold, delivered or returned;
● “active merchants” in a given period are to merchant accounts that had one or more orders shipped to a buyer on
our Pinduoduo mobile platform in that period, regardless of whether the buyer returns the merchandise or the
merchant refunds the purchase price;
● “ADRs” are to the American depositary receipts that evidence our ADSs;
● “ADSs” are to our American depositary shares, each of which represents four Class A ordinary shares, par value
US$0.000005 each;
● “annual spending per active buyer” in a given year are to the quotient of total GMV in that year divided by the
number of active buyers in the same year;
● “China” or the “PRC” are to the People’s Republic of China, excluding, for the purposes of this annual report
only, Hong Kong, Macau and Taiwan;
● “GMV” are to the total value of all orders for products and services placed on our Pinduoduo mobile platform,
regardless of whether the products and services are actually sold, delivered or returned. Buyers on our platform
are not charged for shipping fees in addition to the listed price of merchandise. Hence, merchants may embed the
shipping fees in the listed price. If embedded, then the shipping fees are included in our GMV. As a prudential
matter aimed at eliminating any influence on our GMV of irregular transactions, we exclude from our calculation
of GMV transactions in certain product categories over certain amounts and transactions by buyers in certain
product categories over a certain amount per day;
● “monthly active users” are to the number of user accounts that visited our Pinduoduo mobile app during a given
month, which does not include those that accessed our platform through social networks and access points;
● “our platform” or “Pinduoduo mobile platform” are to our Pinduoduo mobile app and a variety of related
features, functionalities, tools and services that we provide to buyers and merchants via Pinduoduo mobile app
and through social networks and access points;
● “Pinduoduo,” “we,” “us,” “our company” and “our” are to Pinduoduo Inc., its subsidiaries and its consolidated
affiliated entities;
● “RMB” and “Renminbi” are to the legal currency of China;
● “shares” or “ordinary shares” refers to our Class A and Class B ordinary shares, par value US$0.000005 per
share;
● “total orders” are to the total number of orders for products and services placed on our Pinduoduo mobile
platform, regardless of whether the products and services are actually sold, delivered or returned; and
● “US$,” “U.S. dollars,” “$,” and “dollars” are to the legal currency of the United States.
7
Table of Contents
Our reporting currency is the Renminbi because our business is mainly conducted in China and all of our revenues are
denominated in Renminbi. This annual report contains translations of Renminbi amounts into U.S. dollars at specific rates
solely for the convenience of the reader. Unless otherwise noted, all translations from Renminbi to U.S. dollars and from
U.S. dollars to Renminbi in this annual report were made at a rate of RMB6.9618 to US$1.00, the exchange rate on
December 31, 2019 as set forth in the H.10 statistical release of the Board of Governors of the Federal Reserve System. We
make no representation that any Renminbi or U.S. dollar amounts could have been, or could be, converted into U.S. dollars
or Renminbi, as the case may be, at any particular rate or at all.
FORWARD-LOOKING INFORMATION
This annual report contains forward-looking statements that reflect our current expectations and views of future
events. The forward-looking statements are contained principally in the sections entitled “Item 3. Key Information—D.
Risk Factors,” “Item 4. Information on the Company—B. Business Overview” and “Item 5. Operating and Financial
Review and Prospects.” These forward-looking statements are made under the “safe-harbor” provisions of the U.S. Private
Securities Litigation Reform Act of 1995. Known and unknown risks, uncertainties and other factors, including those listed
under “Item 3. Key Information—D. Risk Factors,” may cause our actual results, performance or achievements to be
materially different from those expressed or implied by the forward-looking statements.
You can identify some of these forward-looking statements by words or phrases such as “may,” “will,” “expect,”
“anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,” “is/are likely to,” “potential,” “continue” or other similar
expressions. We have based these forward-looking statements largely on our current expectations and projections about
future events that we believe may affect our financial condition, results of operations, business strategy and financial needs.
These forward-looking statements include statements relating to:
● our growth strategies;
● our future business development, financial conditions and results of operations;
● the trends in the e-commerce industry in China;
● our expectations regarding demand for and market acceptance of our products and services;
● our expectations regarding our relationships with buyers and merchants;
● competition in our industry; and
● relevant government policies and regulations relating to our industry.
These forward-looking statements involve various risks and uncertainties. Although we believe that our expectations
expressed in these forward-looking statements are reasonable, our expectations may later be found to be incorrect. Our
actual results could be materially different from our expectations. Important risks and factors that could cause our actual
results to be materially different from our expectations are generally set forth in “Item 3. Key Information—D. Risk
Factors,” “Item 4. Information on the Company—B. Business Overview,” “Item 5. Operating and Financial Review and
Prospects,” and other sections in this annual report. You should read thoroughly this annual report and the documents that
we refer to with the understanding that our actual future results may be materially different from and worse than what we
expect. We qualify all of our forward-looking statements by these cautionary statements.
8
Table of Contents
This annual report contains certain data and information that we obtained from various government and private
publications. We have not independently verified the accuracy or completeness of the data contained in these industry
publications and reports. Statistical data in these publications also include projections based on a number of assumptions.
The e-commerce industry may not grow at the rate projected by market data, or at all. Failure of this market to grow at the
projected rate may have a material and adverse effect on our business and the market price of our ADSs. In addition, the
rapidly evolving nature of the e-commerce industry results in significant uncertainties for any projections or estimates
relating to the growth prospects or future condition of our market. Furthermore, if any one or more of the assumptions
underlying the market data are later found to be incorrect, actual results may differ from the projections based on these
assumptions. You should not place undue reliance on these forward-looking statements.
The forward-looking statements made in this annual report relate only to events or information as of the date on which
the statements are made in this annual report. Except as required by law, we undertake no obligation to update or revise
publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after the date
on which the statements are made or to reflect the occurrence of unanticipated events. You should read this annual report
and the documents that we refer to in this annual report and exhibits to this annual report completely and with the
understanding that our actual future results may be materially different from what we expect.
PART I
Item 1. Identity of Directors, Senior Management and Advisers
Not applicable.
Item 2. Offer Statistics and Expected Timetable
Not applicable.
Item 3. Key Information
A. Selected Financial Data
The following table presents the selected consolidated financial information for our company. The selected
consolidated statements of comprehensive loss data for the years ended December 31, 2017, 2018 and 2019, selected
consolidated balance sheet data as of December 31, 2018 and 2019 and selected consolidated statements of cash flow data
for the years ended December 31, 2017, 2018 and 2019 have been derived from our audited consolidated financial
statements, which are included in this annual report beginning on page F-1. The selected consolidated statements of
comprehensive loss data for the year ended December 31, 2016, and the selected consolidated balance sheet data as of
December 31, 2016 and 2017 have been derived from our audited consolidated financial statements not included in this
annual report. Our historical results are not necessarily indicative of results expected for future periods. You should read
this selected financial data together with our consolidated financial statements and the related notes and information under
“Item 5. Operating and Financial Review and Prospects” in this annual report. Our audited consolidated financial
statements are prepared and presented in accordance with U.S. GAAP.
The Jumpstart Our Business Startups Act (“JOBS Act”) provides that an emerging growth company (“EGC”) as
defined therein can take advantage of an extended transition period for complying with new or revised accounting
standards. This allows an EGC to delay adoption of certain accounting standards until those standards would otherwise
apply to private companies. The Company as an EGC elected to take advantage of the extended transition period. However,
the Company ceased to be an EGC on December 31, 2018 due to its rapid revenue growth in 2018.
9
Table of Contents
As a result, we adopted Accounting Standards Update (“ASU”) No. 2014-09, Revenue from Contracts with Customers
(Topic 606), as amended, effective January 1, 2018 using the modified retrospective approach. There were no changes
made to our revenue recognition policy as a result of the adoption of Topic 606. We also changed the classification and
presentation of restricted cash on the consolidated statements of cash flows for each of the three years in the period ended
December 31, 2018 due to the adoption of ASU No. 2016-18, Statement of Cash Flows: Restricted Cash. For the years
ended December 31, 2016 and 2017, the changes in restricted cash of nil and RMB9,370.8 million, respectively were
previously reported within net cash used in operating activities in the statements of cash flows. We adopted ASU No. 2016-
02: Leases on January 1, 2019 using the modified retrospective transition method. Right- of-use assets (“ROU assets”) and
lease liabilities (including current and non-current) for operating leases are presented on the face of the consolidated
balance sheet as of December 31, 2019, while the consolidated balance sheet data for the years ended December 31, 2016,
2017 and 2018 have been prepared in accordance with ASC Topic 840 (“ASC 840”), Accounting for Leases.
For the Year Ended December 31,
2018
2016
RMB
US$
RMB
(in thousands, except for number of shares and per share (or ADS) data)
2017
RMB
RMB
2019
Selected Consolidated Statement of Comprehensive Loss
Data:
Revenues
Online marketplace services
Merchandise sales
Total revenues
Costs of revenues(1)
Costs of online marketplace services
Costs of merchandise sales
Total costs of revenues
Gross (loss)/profit
Operating expenses
Sales and marketing expenses(1)
General and administrative expenses(1)
Research and development expenses(1)
Impairment of a long-term investment
Total operating expenses
Operating loss
Other income/(expenses)
Interest and investment gain, net
Interest expense
Foreign exchange gain/(loss)
Change in the fair value of warrant liability
Other (loss)/income, net
Loss before income tax and share of results of equity
investees
Share of results of equity investees
Income tax expenses
Net loss
Net loss attributable to ordinary shareholders
Loss per share
Basic
Diluted
Shares used in loss per share computation
Basic
Diluted
Loss per ADS (each ADS representing four Class A ordinary
shares)
Basic
Diluted
Weighted average number of shares
Basic
Diluted
48,276
456,588
504,864
(93,551)
(484,319)
(577,870)
(73,006)
(168,990)
(14,793)
(29,421)
—
(213,204)
(286,210)
4,460
475
(8,668)
(2,034)
(291,977)
—
—
(291,977)
(322,407)
1,740,691
3,385
1,744,076
(719,778)
(3,052)
(722,830)
1,021,246
(1,344,582)
(133,207)
(129,181)
(10,000)
(1,616,970)
(595,724)
80,783
—
(11,547)
—
1,373
(525,115)
—
—
(525,115)
(498,702)
13,119,990
—
13,119,990
(2,905,249)
—
(2,905,249)
10,214,741
(13,441,813)
(6,456,612)
(1,116,057)
—
(21,014,482)
(10,799,741)
584,940
—
10,037
—
(12,361)
(10,217,125)
—
—
(10,217,125)
(10,297,621)
30,141,886
—
30,141,886
(6,338,778)
—
(6,338,778)
23,803,108
(27,174,249)
(1,296,712)
(3,870,358)
—
(32,341,319)
(8,538,211)
1,541,825
(145,858)
63,179
—
82,786
(6,996,279)
28,676
—
(6,967,603)
(6,967,603)
4,329,611
—
4,329,611
(910,508)
—
(910,508)
3,419,103
(3,903,337)
(186,261)
(555,942)
—
(4,645,540)
(1,226,437)
221,469
(20,951)
9,075
—
11,891
(1,004,953)
4,119
—
(1,000,834)
(1,000,834)
(0.18)
(0.18)
(0.28)
(0.28)
(3.47)
(3.47)
(1.51)
(1.51)
(0.22)
(0.22)
1,815,200
1,815,200
1,764,799
1,764,799
2,968,320
2,968,320
4,627,278
4,627,278
4,627,278
4,627,278
(0.72)
(0.72)
(1.12)
(1.12)
(13.88)
(13.88)
(6.04)
(6.04)
(0.88)
(0.88)
1,815,200
1,815,200
1,764,799
1,764,799
2,968,320
2,968,320
4,627,278
4,627,278
4,627,278
4,627,278
(1) Share-based compensation expenses were allocated as follows:
10
Table of Contents
Costs of revenues
Sales and marketing expenses
General and administrative expenses
Research and development expenses
Total
2016
RMB
276
563
1,477
1,748
4,064
2019
RMB
2017
RMB
For the Year Ended December 31,
2018
RMB
(in thousands)
3,488
405,805
6,296,186
136,094
6,841,573
796
1,675
108,141
5,893
116,505
23,835
860,862
786,641
886,368
2,557,706
US$
3,424
123,655
112,994
127,319
367,392
The following table presents our selected consolidated balance sheet data as of the dates indicated:
2016
RMB
2017
RMB
As of December 31,
2018
RMB
(in thousands)
2019
RMB
US$
Selected Consolidated Balance Sheet Data:
Current assets:
Cash and cash equivalents
Restricted cash(1)
Receivables from online payment platforms
Short-term investments
Prepayments and other current assets
Non-current assets:
Other non-current assets
Property and equipment, net
Total assets
Current liabilities:
Payable to merchants
Merchant deposits
Total current liabilities
Total mezzanine equity
Total shareholders’ (deficits)/equity
1,319,843
—
10,282
290,000
40,731
3,058,152
9,370,849
88,173
50,000
127,742
14,160,322
5,768,186
16,379,364 27,577,671
1,050,974
7,630,689 35,288,827
950,277
953,989
247,586
828,548
3,961,285
150,963
5,068,923
136,499
15,000
2,248
1,770,751
5,000
9,279
13,314,470
182,667
29,075
503,120
41,273
43,182,063 76,057,336
72,269
5,928
10,924,953
1,116,798
219,472
1,414,296
782,733
(426,278)
9,838,519
1,778,085
12,109,507
2,196,921
(991,958)
17,275,934 29,926,488
4,188,273
7,840,912
24,359,469 45,767,806
—
18,822,594 24,646,866
—
4,298,671
1,126,277
6,574,135
—
3,540,300
(1) Restricted cash represents cash received from buyers and reserved in a bank supervised account for payments to
merchants
11
Table of Contents
The following table presents our selected consolidated cash flow data for the periods indicated:
For the Year Ended December 31,
2016
RMB
2017
RMB
2018
RMB
(in thousands)
2019
RMB
US$
879,777
9,686,328
7,767,927
14,820,976
2,128,900
(307,301)
486,538
71,651
1,398,860
(7,548,509)
17,344,357
(28,319,678)
15,854,731
(4,067,867)
2,277,390
20,397
(47,681)
546,910
450,142
64,659
1,079,411
11,109,158
18,110,685
2,806,171
403,082
240,432
1,319,843
12,429,001
30,539,686
4,386,751
1,319,843
12,429,001
30,539,686
33,345,857
4,789,833
Selected Consolidated Cash Flow Data:
Net cash generated from operating activities
Net cash (used in)/generated from investing
activities
Net cash generated from financing activities
Exchange rate effect on cash, cash equivalents
and restricted cash
Net increase in cash, cash equivalents and
restricted cash
Cash, cash equivalents at and restricted cash at
beginning of the year
Cash, cash equivalents and restricted cash at end
of the year
B. Capitalization and Indebtedness
Not applicable.
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
Risks Related to Our Business and Industry
Our limited operating history makes it difficult to evaluate our business and prospects. We cannot guarantee that we will
be able to maintain the growth rate that we have experienced to date.
We commenced our commercial operations in 2015, and have a limited operating history. The number of our active
buyers have grown exponentially to reach approximately 585.2 million in the twelve-month period ended December 31,
2019. Our revenues grew from RMB13,120.0 million in the twelve months ended December 31, 2018 to RMB30,141.9
million (US$4,329.6 million) in the same period in 2019. However, our historical performance may not be indicative of our
future growth or financial results. We cannot assure you that we will be able to grow at the same rate as we did in the past,
or avoid any decline in the future. Our growth may slow down or become negative, and revenues may decline for a number
of possible reasons, some of which are beyond our control, including decreasing consumer spending, increasing
competition, declining growth of our overall market or industry, the emergence of alternative business models, changes in
rules, regulations, government policies or general economic conditions. In addition, our online marketing services, from
which we have generated almost all of our revenues since 2017, are a relatively new initiative and may not grow as quickly
as we have anticipated. It is difficult to evaluate our prospects, as we may not have sufficient experience in addressing the
risks to which companies operating in rapidly evolving markets may be exposed. If our growth rate declines, investors’
perceptions of our business, operating results and prospects may be materially and adversely affected and the market price
of our ADSs could decline. You should consider our prospects in light of the risks and uncertainties that companies with a
limited operating history may encounter.
12
Table of Contents
If we fail to anticipate buyer needs and provide products and services to attract and retain buyers, or fail to adapt our
services or business model to changing buyer needs or emerging industry standards, our business may be materially and
adversely affected.
The e-commerce market in which we operate as well as buyer needs and preferences are constantly evolving. As a
result, we must continuously respond to changes in the market and buyer demand and preferences to remain competitive,
grow our business and maintain our market position. We intend to further diversify our product and service offerings to add
to our revenue sources in the future. New products and services, new types of buyers or new business models may involve
risks and challenges we do not currently face. Any new initiatives may require us to devote significant financial and
management resources and may not perform as well as expected. Furthermore, we may have difficulty in anticipating buyer
demand and preferences, and the products offered on our platform may not be accepted by the market or be rendered
obsolete or uneconomical. Therefore, any inability to adapt to these changes may result in a failure to capture new buyers
or retain existing buyers, the occurrence of which would materially and adversely affect our business, financial condition
and results of operations.
In addition, to remain competitive, we must continue to enhance and improve the responsiveness, functionality and
features of our platform. The internet and e-commerce markets are characterized by rapid technological evolution, changes
in buyer requirements and preferences, frequent introductions of new products, features and services embodying new
technologies and the emergence of new industry standards and practices, any of which could render our existing
technologies and systems obsolete. Our success will depend, in part, on our ability to identify, develop and adapt to new
technologies useful in our business, and respond to technological advances and emerging industry standards and practices,
in particular with respect to mobile internet, in a cost-effective and timely way. We cannot assure you that we will be
successful in these efforts.
Any harm to our brand or reputation may materially and adversely affect our business and results of operations.
We believe that the recognition and reputation of our Pinduoduo or “(cid:0)(cid:0)(cid:0)” brand among our buyers, merchants and
third-party service providers have contributed significantly to the growth and success of our business. Maintaining and
enhancing the recognition and reputation of our brand are critical to our business and competitiveness. Many factors, some
of which are beyond our control, are important to maintaining and enhancing our brand. These factors include our ability
to:
● provide a superior shopping experience to buyers;
● maintain the popularity, attractiveness, diversity, quality and authenticity of our product offerings;
● maintain the efficiency, reliability and quality of the fulfillment and delivery services to our buyers;
● maintain or improve buyers’ satisfaction with our after-sale services;
● increase brand awareness through marketing and brand promotion activities; and
● preserve our reputation and goodwill in the event of any negative publicity on consumer experience or merchant
service, internet and data security, product quality, price or authenticity, or other issues affecting us or other e-
commerce businesses in China.
Public perception that counterfeit, unauthorized, illegal, or infringing products are sold on our platform or that we or
merchants on our platform do not provide satisfactory consumer services, even if factually incorrect or based on isolated
incidents, could damage our reputation, diminish the value of our brand, undermine the trust and credibility we have
established and have a negative impact on our ability to attract new buyers or retain our current buyers. In particular, we
have been and may continue to be subject to negative publicity based on claims and allegations related to intellectual
property. For example, in April 2019, the Office of the U.S. Trade Representative, or USTR, identified our platform as a
"notorious market." The USTR may continue to identify our platform as a notorious market in the future. The negative
public perception resulted therefrom could damage our reputation, harm our business, diminish the value of our brand
name and negatively affect trading price of our ADSs.
13
Table of Contents
If we are unable to maintain our reputation, enhance our brand recognition or increase positive awareness of our
platform, products and services, it may be difficult to maintain and grow our buyer base, and our business and growth
prospects may be materially and adversely affected.
Our merchants use a variety of third-party logistics service providers and e-waybill systems. Service interruptions,
failures, or constraints of these logistics service providers or any disruptions or malfunctions of the e-waybill systems
could severely harm our business and prospects.
The merchandise on our platform are supplied and shipped directly from our merchants to our buyers. Our merchants
use third-party logistics service providers to fulfill and deliver their orders. Interruptions to or failures in third-party
logistics services could prevent timely and successful delivery of the ordered products to our buyers. As we do not directly
control or manage the operations of these third-party logistics service providers, we may not be able to guarantee their
performance. Any failure to provide satisfactory services to our buyers, such as delays in delivery, product damage or
product loss during transit, may damage our reputation and cause us to lose buyers, and may ultimately adversely affect our
results of operations. In addition, certain of these third-party logistics service providers may be influenced by our
competitors when providing services to us. For example, if third-party logistics service providers raise the shipping rates
for delivering products of merchants on our platform, our merchants may not be willing to bear the increased costs or be
able to offer competitive prices for products on our platform. As a result, our business and prospects, as well as our
financial condition and results of operations could be materially and adversely affected.
If the third-party logistics service providers used by our merchants fail to deliver products to our buyers on time or
deliver products in good conditions, our buyers may refuse to accept merchandise purchased on our platform and have less
confidence in our platform. In such event, we cannot assure you that our merchants will be able to find alternative cost-
efficient logistics service providers to offer satisfactory delivery services in a timely manner, or at all, which could cause
our business and reputation to suffer or cause merchants to move to other platforms and have negative impact on our
financial conditions.
Most merchants use e-waybill systems to arrange and track shipment. While we launched our e-waybill system during
the first quarter of 2019, the merchants on our platform are allowed to choose different e-waybill systems. Any disruptions
or malfunctions of e-waybill systems used by our merchants could prevent the timely or proper delivery of products to
consumers, which would damage our reputation, harm our business, diminish the value of our brand name.
We face intense competition, and if we fail to compete effectively, we may lose market share, buyers and merchants.
The e-commerce industry in China is intensely competitive. We compete to attract, engage and retain buyers,
merchants, and other participants on our platforms. Our current or potential competitors include (i) major e-commerce
companies in China, (ii) major traditional and brick-and-mortar retailers in China, (iii) retail companies in China focused
on specific product categories and (iv) major internet companies in China that do not operate e-commerce businesses now
but may enter the e-commerce business area or are in the process of initiating their e-commerce businesses. These current
or future competitors may have longer operating histories, greater brand recognition, better supplier or merchant
relationships, stronger infrastructure, larger buyer bases or greater financial, technical or marketing resources than we do.
Competitors may leverage their brand recognition, experience and resources to compete with us in a variety of ways,
including making investments and acquisitions for the expansion of their product and service offerings. Some of our
competitors may be able to secure more favorable terms from merchants, devote greater resources to marketing and
promotional campaigns, adopt more aggressive pricing or inventory policies and devote substantially more resources to
develop their IT systems and technology. Some of these competitors may also offer “team purchase” on their platforms or
offer innovative purchase models that may turn out to be highly popular among buyers, and buyers may prefer them over
our team purchase model. In addition, new and enhanced technologies may increase the competition in the market we
operate in. Increased competition may reduce our profitability, market share, user base and brand recognition. There can be
no assurance that we will be able to compete successfully against current or future competitors, and such competitive
pressures may have a material and adverse effect on our business, financial condition and results of operations.
14
Table of Contents
If we fail to maintain and expand our relationships with merchants, our revenues and results of operations will be
harmed.
We rely on our merchants to offer merchandise that appeal to our existing and potential buyers at attractive prices. Our
ability to provide popular products on our platform at attractive prices depends on our ability to develop mutually
beneficial relationships with our merchants. For example, we rely on our merchants to make available sufficient inventory
and fulfill large volumes of orders in an efficient and timely manner to ensure our user experience. To date, our buyers and
merchants have been increasing in parallel as a result of the powerful network effects of our platform. However, we may
experience merchant attrition in the ordinary course of business resulting from several factors, such as losses to
competitors, perception that marketing on our platform is ineffective, reduction in merchants’ marketing budgets, and
closures or bankruptcies of merchants. In addition, we may have disputes with merchants with respect to their compliance
with our quality control policies and measures and the penalties imposed by us for violation of these policies or measures
from time to time, which may cause them to be dissatisfied with our platform. Their complaints may in turn result in
negative impact on our public image and reputation. If we experience significant merchant attrition, or if we are unable to
attract new merchants, our revenues and results of operations may be materially and adversely affected. In addition, our
agreements with merchants also typically do not restrict them from establishing or maintaining business relationships with
our competitors. We cannot assure you that merchants will continue to offer merchandise on our platform if they are
pressured to use only one platform to market their products.
Any change, disruption, discontinuity in the features and functions of major social networks could severely limit our
ability to continue growing our buyer base, and our business may be materially and adversely affected.
Our success depends on our ability to attract and retain new buyers and expand our buyer base. Acquiring and
retaining buyers on our platform is important to the growth and profitability of our business. We leverage social networks
as a tool for buyer acquisition and engagement. Although buyers can access our platform and make team purchases directly
through our Pinduoduo mobile app, we leverage social networks, such as Weixin and QQ, to enable buyers to share
product information and their purchase experiences with their friends, family and other social contacts to generate effective
and organic traffic and active interactions among buyers. A portion of our buyer traffic comes from such user
recommendation or product introduction feature which buyers can share with friends or contacts through social networks.
Due to the nature of our business model, which resembles a dynamic and interactive shopping experience, it is
impracticable for us to accurately bifurcate and quantify the buyer traffic generated directly through our platform and
through social networks. Therefore, during our daily operations, we focus more on the GMV on our platform as a whole
and the seamless user experience across different access points, and believe that the final purchase destination cannot be
used to reflect the significance of social networks and our Pinduoduo mobile app to our business operations.
To the extent that we fail to leverage such social networks, our ability to attract or retain buyers may be severely
harmed. If any of these social networks makes changes to its functions or support, such as charging fees for functions or
support that is currently provided for free, or stops offering its functions or support to us, we may not be able to locate
alternative platforms of similar scale to provide similar functions or support on commercially reasonable terms in a timely
manner, or at all. Furthermore, we may fail to establish or maintain relationships with additional social network operators
to support the growth of our business on economically viable terms, or at all. Any interruption to or discontinuation of our
relationships with major social network operators may severely and negatively impact our ability to continue growing our
buyer base, and any occurrence of the circumstances mentioned above may have a material adverse effect on our business,
financial condition and results of operations.
We are dependent on app stores to disseminate our mobile apps.
We offer our services mainly through our Pinduoduo mobile platform. Our mobile apps are offered via smartphone and
tablet apps stores operated by third parties, such as Apple’s App Store, which could suspend or terminate users’ access to
our mobile apps, increase access costs or change the terms of access in a way that makes our apps less desirable or harder
to access. As a result, our ability to expand our user base may be hindered if potential users experience difficulties in or are
barred from accessing our mobile apps. In the past, our mobile apps were taken down from certain third-party app stores
for a short period of time. We cannot assure you that we will not experience such incident of similar nature in the future.
The occurrence of the similar incident may adversely affect our brand and reputation, business, financial condition and
results of operations.
15
Table of Contents
Any disruption to our IT systems could materially affect our ability to maintain the satisfactory performance of our IT
systems and deliver consistent services to our buyers and merchants.
The proper functioning of our IT systems is essential to our business. The satisfactory performance, reliability and
availability of our IT systems are critical to our success, our ability to attract and retain buyers and our ability to maintain
and deliver consistent services to our buyers and merchants. However, our technology infrastructure may fail to keep pace
with increased sales on our platform, in particular with respect to our new product and service offerings, and therefore our
buyers may experience delays as we seek to source additional capacity, which would adversely affect our results of
operations as well as our reputation.
Additionally, we must continue to upgrade and improve our technology infrastructure to support our business growth.
However, we cannot assure you that we will be successful in executing these system upgrades, and the failure to do so may
impede our growth. We currently rely on cloud services and servers operated by external cloud service providers to store
our data, to allow us to analyze a large amount of data simultaneously and to update our buyer database and buyer profiles
quickly. Any interruption or delay in the functionality of these external cloud service and server providers may materially
and adversely affect the operations of our business.
We may be unable to monitor and ensure high-quality maintenance and upgrade of our IT systems and infrastructure
on a real-time basis, and buyers may experience service outages and delays in accessing and using our platform to place
orders. In addition, we may experience surges in online traffic and orders associated with promotional activities and
generally as we scale, which can put additional demand on our platform at specific times. Our technology or infrastructure
may not function properly at all times. Any system interruptions caused by telecommunications failures, computer viruses,
hacking or other attempts to harm our systems that result in the unavailability or slowdown of our platform or reduced
order fulfillment performance could reduce the volume of products sold and the attractiveness of product offerings on our
platform. Our servers may also be vulnerable to computer viruses, physical or electronic break-ins and similar disruptions,
which could lead to system interruptions, mobile app slowdown or unavailability, delays or errors in transaction
processing, loss of data or the inability to accept and fulfill buyer orders. Any of such occurrences could cause severe
disruption to our daily operations. As a result, our reputation may be materially and adversely affected, our market share
could decline and we could be subject to liability claims.
We have incurred net losses in the past, and we may continue to incur losses in the future.
We have incurred net losses since our inception. We incurred net loss of RMB6,967.6 million (US$1,000.8 million) in
the twelve months ended December 31, 2019, compared to net loss of RMB10,217.1 million in the twelve months ended
December 31, 2018. We cannot assure you that we will be able to generate net profits in the future. In addition, we expect
our operating costs and expenses to increase in absolute amounts in the future due to: (i) the continued expansion of our
business operations, buyer base and merchant network, (ii) the continued investment in technology infrastructure and
network, (iii) our promotion and marketing efforts as we continue to enhance our brand recognition, retain and grow our
buyer base, and increase our buyer activities, (iv) the launch of new services, and (v) the investment in new initiatives,
which may incur upfront costs, change our existing revenue and cost structures, and affect our ability to achieve
profitability.
Our ability to achieve profitability depends on our ability to, among other things, increase our number of active buyers,
grow and diversify our merchant base, and optimize our cost structure. We may not be able to achieve any of the above. In
particular, our sales and marketing expenses increased substantially from RMB13,441.8 million in the twelve months
ended December 31,2018 to RMB27,174.2 million (US$3,903.3 million) in the twelve months ended December 31, 2019,
as we invested in cultivating greater user recognition and engagement through online and offline advertising campaigns
and promotions. If we continue to incur substantial sales and marketing expenses without being able to achieve the
anticipated buyer and merchant growth, our operating results may be materially and adversely affected. As a result, we may
fail to improve our operating margin, and may continue to incur net losses in the future. In addition, our ability to use our
net losses to offset future taxable income may be subject to certain limitations, including limitations resulting from
reorganization of our corporate structure and change of our primary operating entities. As such, we may not be able to fully
utilize our net losses or at all, even if we were to achieve profitability.
16
Table of Contents
We rely on certain key operating metrics to evaluate the performance of our business, and perceived inaccuracies in
such metrics may harm our reputation and negatively affect our business.
We rely on certain key operating metrics, such as GMV, to evaluate the performance of our business. Our operating
metrics may differ from estimates published by third parties or from similarly titled metrics used by other companies due to
differences in methodology and assumptions. If these metrics are perceived to be inaccurate by investors or investors make
investment decisions based on operating metrics we disclosed but with their own methodology and assumptions or those
published or used by third parties or other companies, our reputation may be harmed, which could negatively affect our
business, and we may also face potential lawsuits or disputes.
We face risks related to natural disasters, health epidemics and other outbreaks, which could significantly disrupt our
operations.
We and our merchants are vulnerable to natural disasters, health epidemics, and other calamities. Any of such
occurrences could cause severe disruption to the daily operations of us and our merchants, and may even require a
temporary closure of facilities and logistics delivery networks, which may disrupt our business operations and adversely
affect our results of operations. In recent years, there have been outbreaks of epidemics in China and globally. For example,
in early 2020, in response to the intensifying efforts to contain the spread of COVID-19, the Chinese government took a
number of actions, which included extending the Chinese New Year holiday, quarantining individuals suspected of having
COVID-19, asking residents in China to stay at home and to avoid public gathering, among other things. COVID-19 has
also resulted in temporary closure of many corporate offices, retail stores, and manufacturing facilities and factories across
China, and put significant strain on merchandise shipping and delivery. Reduction in product offering and delay in delivery
caused by the impairment of manufacturing and delivery capacity may damage our reputation and cause us to lose buyers,
and adversely affect our results of operations. While the events related to the outbreak of and response to the COVID-19
are expected to be temporary, our business could be adversely impacted by the effects of the COVID-19 or other
epidemics. Measures taken to contain outbreaks of epidemics could reduce our business operation capacity and negatively
affect our operating results. In addition, our results of operations could be adversely affected to the extent that any of these
epidemics or other catastrophic events harms the Chinese economy in general.
Our success depends on the continuing efforts of our key employees. If we fail to hire, retain and motivate our key
employees, our business may suffer.
Our future success is significantly dependent upon the continued service of our key executives and other key
employees. If we lose the services of any member of our management or key personnel, we may not be able to locate
suitable or qualified replacements, and may incur additional expenses to recruit and train new staff, which could severely
disrupt our business and growth. Our founder and chief executive officer, Mr. Zheng Huang, and other management
members are critical to our vision, strategic direction, culture and overall business success. If there is any internal
organizational structure change or change in responsibilities for our management or key personnel, the operation of our
business and our business prospects may be adversely affected. Our employees, including members of our management,
may choose to pursue other opportunities. If we are unable to motivate or retain key employees, our business may be
severely disrupted and our prospects could suffer.
17
Table of Contents
The increasing scale of our business also requires us to hire and retain a wide range of capable and experienced
personnel and technology talents who can adapt to a dynamic, competitive and challenging business environment.
Competition for talents is intense, and the availability of suitable and qualified candidates in China is limited. Competition
for talents could cause us to offer higher compensation and other benefits to attract and retain them. Even if we were to
offer higher compensation and other benefits, these individuals may not choose to join or continue to work for us. Any
failure to attract or retain key management and personnel could severely disrupt our business and growth.
If we are unable to manage our growth or execute our strategies effectively, our business and prospects may be
materially and adversely affected.
Our business has grown substantially since our inception, and we expect continued growth in our business, revenues
and number of employees. We have significantly expanded our headcount and office facilities, and we anticipate that
further expansion in certain areas and geographies will be required. This expansion increases the complexity of our
operations and places a significant strain on our management, operational and financial resources. The expansion may
cause additional risks and costs in relation to compliance, such as dealing with regulatory enforcement or labor disputes.
We must continue to hire, train and effectively manage new employees. If our new hires perform poorly or if we are
unsuccessful in hiring, training, managing and integrating new employees, our business, financial condition and results of
operations may be materially harmed.
In addition, we plan to further establish relationships with more merchants to increase the product offerings on our
platform. Such expansion may require us to introduce new products and work with a variety of additional merchants to
address the evolving needs of our buyers. We may have limited or no experience for certain new product offerings, and our
expansion into these new product offerings may not achieve broad buyer acceptance. These offerings may present new and
difficult technological or operational challenges, and we may be subject to claims if buyers are not satisfied with the
quality of the products or do not have satisfactory experiences in general.
To effectively execute our business strategies and manage the expected growth of our operations and personnel, we
will need to continue to improve our transaction processing, technological, operational and financial systems, policies,
procedures and controls. All of these endeavors involve risks and will require significant management, financial and human
resources. We cannot assure you that we will be able to effectively manage our growth or to implement our strategies
successfully. If we are not able to manage our growth or implement our strategies effectively, or at all, our business and
prospects may be materially and adversely affected. For example, we have developed an open, asset-light logistics
technology platform. As the first pillar to such logistics technology platform, we launched our e-waybill system during the
first quarter of 2019. Building on top of our e-waybill system, our aim is to build a platform that would provide technology
solutions to our sizable and growing merchant base, and fundamentally improve their efficiencies and services to users as
we deepen our relationships with them through C2M, cross-border e-commerce, and other initiatives. As a result of the
development of this platform, we may incur additional costs and expenses, devote more management’s attention to its
operations and compliance and allocate additional resources in dealing with potential disputes relating to its operations and
intellectual property rights.
18
Table of Contents
We may incur liability for counterfeit, unauthorized, illegal, or infringing products sold or misleading information
available on our platforms.
Under our current marketplace model, all products offered on our platform are supplied by merchants, who are
separately responsible for sourcing and coordinating delivery of the products that are sold on our platform. In 2019, we had
5.1 million active merchants on our platform, offering a broad range of product categories. We have been and may continue
to be subject to allegations and lawsuits claiming that products listed or sold through our platform by third-party merchants
are counterfeit, unauthorized, illegal, or otherwise infringe third-party copyrights, trademarks, patents or other intellectual
property rights, or that content posted on our user interface contains misleading information on description of products and
comparable prices. Although we have adopted strict measures to protect us against these potential liabilities, including but
not limited to, proactively verifying the authenticity and authorization of products sold on our platform through working
with brands and conducting offline investigations, blocking prior to product launch or immediately taking down any
counterfeit or illegal products or misleading information found on our platform, closing higher-risk online stores, and
freezing the accounts of merchants in violation of the platform policies, these measures may not always be successful or
timely. For example, in January 2018, we were required by the relevant government authorities to strengthen supervision
on the qualifications of the distributors of publications on our platform and to respond effectively to claims of copyright
infringement. We have taken a number of measures in accordance with such requirements including the implementation of
a comprehensive system in reviewing and tracking the qualification status of the relevant merchants. In August 2018, we
met with the officials from the relevant governmental authorities to discuss the alleged sale of counterfeit and infringing
products on our platform upon their request. Shortly after the meetings, we adopted a number of remediation measures
including more rigorous policies of closure of stores and removal of listings with infringing products from our platform.
We may implement further measures in an effort to eliminate infringing products on our platforms, including taking legal
actions against merchants of counterfeit or infringing products, which may cause us to spend substantial additional
resources or result in reduced revenues. In addition, these measures may not appeal to consumers, merchants or other
participants on our platforms. A merchant whose account is suspended or terminated by us, regardless of our compliance
with the applicable laws, rules and regulations, may have disputes with us and commence action against us for damages,
make public complaints or engage in publicity campaigns against us. We may incur significant costs to defend against these
activities, which could harm our business.
In the event that counterfeit, illegal, unauthorized or infringing products are sold on our platform or infringing or
misleading content is posted on our user interface, we could face claims or be imposed penalties. Counterfeit products sold
on our platform may damage our reputation and cause buyers to refrain from making future purchases from us, which
would materially and adversely affect our business operations and financial results. We have in the past received claims
alleging the sales of defective, counterfeit or unauthorized items on our platform. For example, in July 2018, a complaint
was filed against us in U.S. federal court alleging contributory trademark infringement and unfair competition based on
certain allegedly counterfeit and unauthorized merchandise sold by merchants to U.S. consumers on our platform. In
August 2019, the court granted our motion to dismiss the plaintiff's complaint and dismissed all claims against us on the
ground that the court lacked personal jurisdiction. Irrespective of the validity of such claims, we could incur significant
costs and efforts in either defending against or settling such claims. If there is a successful claim against us in the United
States, we might be required to pay substantial damages or be enjoined from permitting further sale of the relevant products
or activities by certain merchants. Potential liabilities under PRC law for negligence in participating or assisting in
infringement activities associated with counterfeit goods include injunctions to cease infringing activities, rectification,
compensation, administrative penalties and even criminal liability.
Moreover, the alleged sales of counterfeit products and third-party claims or administrative penalties related to them
could result in significant negative publicity and our reputation could be severely damaged. For example, in April 2019, the
Office of the U.S. Trade Representative, or USTR, identified our platform as a "notorious market." The USTR may
continue to identify our platform as a notorious market in the future. The negative public perception resulted therefrom
could damage our reputation, harm our business, diminish the value of our brand name and negatively affect trading price
of our ADSs.
19
Table of Contents
Some of our merchants interact and exchange information with our users through our livestreaming feature. As such
communication is conducted in real time, we are unable to verify the information exchanged. Therefore, it is possible that
users may engage in conversations or activities with illegal, obscene or infringing content that may be deemed unlawful
under PRC laws and regulations on our platform. In addition, certain merchants may post and sell on our platform products
that may not be sold via e-commerce platform under relevant PRC regulation, such as prescription drugs and foreign
currencies. Failure to identify and remove such products and content from our platform may subject us to liability and
administrative penalties. Any of these events could have a material and adverse effect on our business, results of operations
or financial condition.
Under our standard form agreements, we require our merchants to indemnify us for any losses we suffer or any costs
that we incur due to any products sold by these merchants. However, we may not be able to successfully enforce our
contractual rights and may need to initiate costly and lengthy legal proceedings in China to protect our rights.
In addition to fraudulent transactions with legitimate buyers, merchants on our platform may engage in fictitious
transactions with themselves or collaborate with third parties in order to artificially inflate their sales records and search
results rankings. Such activity may frustrate other merchants by enabling the perpetrating merchants to be favored over
legitimate merchants, and may harm buyers by misleading them to believe that a merchant is more reliable or trustworthy
than the merchant actually is. This activity may also result in inflated GMV, total orders and other key metrics on our
platform. Although we have implemented strict measures to detect and penalize merchants who engaged in fraudulent
activities on our platform, there can be no assurance that such measures will be effective in preventing fraudulent
transactions.
Moreover, illegal, fraudulent or collusive activities by our employees could also subject us to liability or negative
publicity. There were occasions where we found out that our employees had accepted payments from merchants attempting
to receive preferential treatment on our platform, and we reported such behavior to the relevant government authorities.
Although we implement a zero-tolerance policy towards these activities and have not been charged with any wrongdoing,
there can be no assurance that our controls and policies will completely prevent fraud or illegal activity by our employees
or that similar incidents will not occur in the future. Negative publicity and user sentiment resulting from similar incidents
could severely diminish consumer confidence in us and the value of our brand, and would materially and adversely affect
our business, financial condition and results of operations.
We may be subject to claims under consumer protection laws, including health and safety claims and product liability
claims, if property or people are harmed by the products and services sold on our platform. Additionally, new laws and
regulations may impose additional requirements and other obligations on our business, which may materially and
adversely affect our business, financial conditions and results of operations.
The PRC government, media outlets and public advocacy groups have been increasingly focused on consumer
protection in recent years. The products sold by third-party merchants on our platform may be defectively designed or
manufactured, and offerings of defective products on our platform may expose us to liabilities associated with consumer
protection laws. Operators of e-commerce platforms are subject to certain provisions of consumer protection laws even
where the operator is not the manufacturer or provider of the products or services purchased by the consumer. For example,
under applicable consumer protection laws in China, e-commerce platform operators may be held liable for consumer
claims relating to damage if they are unable to provide consumers with the true name, address and contact details of
merchants. In addition, if we do not take appropriate remedial action against merchants for actions they engage in that we
know, or should have known, would infringe upon the rights and interests of consumers, we may be held jointly liable for
infringement alongside the merchants. Moreover, applicable consumer protection laws in China provide that platforms will
be held liable for failing to meet any undertakings that the platforms make to consumers with regard to products listed on
their platforms. Furthermore, we are required to report to the State Administration for Market Regulation, formerly known
as the State Administration for Industry and Commerce, or SAIC, or its local branches any violation of applicable laws,
regulations or SAIC rules by merchants, such as sales of goods without proper license or authorization, and we are required
to take appropriate remedial measures, including ceasing to provide services to the relevant merchants. We may also be
held jointly liable with merchants who do not possess the proper licenses or authorizations to sell goods or sell goods that
do not meet product standards.
20
Table of Contents
We do not maintain product liability insurance for products transacted on our platform, and our rights of indemnity
from the merchants on our platform may not adequately cover us for any liability we may incur. Even unsuccessful claims
could result in significant expenditure of funds and diversion of management time and resources, which could materially
and adversely affect our business, financial condition and prospects.
In addition, the PRC government authorities may continue to promulgate new laws, regulations and rules governing
the e-commerce industry, tighten enforcement of existing laws, rules and regulations, and impose additional requirements
and other obligations on our business. For example, in August 2018, the standing committee of the National People’s
Congress promulgated the E-Commerce Law, which took effect in January 2019. According to the E-Commerce Law, e-
commerce platform operators who fail to take necessary actions when they know or should have known that the merchants
on their platform infringe others’ intellectual property rights or the products or services provided by the merchants do not
meet the requirements for product safety, or otherwise infringe upon consumers’ legitimate rights, will be held jointly liable
with the merchants. Additionally, with respect to the products or services affecting consumers’ life and health, the e-
commerce platform operators will bear relevant responsibilities if they fail to review the qualifications of merchants or fail
to safeguard the interests of the consumers.
The E-Commerce Law also requires e-commerce platform operators to take necessary actions if merchants on the
platform fail to display prominently on their respective platform web page the information contained in their business
licenses or administrative permits relating to their operating businesses. According to the E-Commerce Law, all e-
commerce operators, including individuals and entities carrying out their business online and e-commerce platform
operators and merchants on these platforms, should register with the relevant local branches of SAIC. Individuals selling
agricultural products or conducting certain transactions with minimum economic value and low volume are not subject to
these registration requirements. In addition, e-commerce platform operators should provide identity information of
merchants on their platform to local branches of SAIC and procure the merchants who fail to make such registrations to
comply with the relevant registration requirements. We set clear requirements for all merchants on our platform to
complete such registrations. As a result of such requirements, we may lose existing merchants who do not conduct or fail to
conduct such registrations and we may fail to attract potential merchants who might not be willing to cooperate with us in
full compliance with the E-Commerce Law. See “Item 4. Information on the Company—B. Business Overview—
Regulation—Regulations Relating to E-Commerce.” Such new laws, regulations and rules may result in additional
compliance obligations and increased costs or place restrictions upon our current or future operations, and may materially
and adversely affect our business, financial condition and results of operations.
We may face challenges in expanding our product offerings.
The merchants on our platform carry a wide range of products, including apparel, shoes, bags, mother and childcare
products, food and beverage, fresh produce, electronic appliances, furniture and household goods, cosmetics and other
personal care items, sports and fitness items and auto accessories. Expansion of product offerings both in categories and
items involve new risks and challenges. Our lack of familiarity with these products and lack of relevant buyer data relating
to these products may make it more difficult for us to anticipate buyer demand and preferences and to inspect and control
quality and ensure proper handling, storage and delivery by our merchants. Our merchants may experience higher return
rates on new products, receive more buyer complaints about such products and face costly product liability claims as a
result of selling such products, which would harm our brand and reputation as well as our financial performance. We may
also be involved in disputes with the merchants in connection with these claims and complaints.
As we broaden our product offerings, we will need to work with a large number of new merchants efficiently and
establish and maintain mutually beneficial relationships with our existing and new merchants. To support our growth and
our expansion, we will need to devote management, operating, financial and human resources which may divert our
attention from existing businesses, incur upfront costs, and implement a variety of new and upgraded management,
operating, financial and human resource systems, procedures and controls. There is no assurance that we will be able to
implement all of these systems, procedures and control measures successfully or address the various challenges in
expanding our future businesses and operations effectively. In addition, our newly launched “Internet + Agriculture”
initiative may face risks and uncertainties and may not grow successfully.
21
Table of Contents
Tencent provides services to us in connection with various aspects of our operations. If such services become limited,
restricted, curtailed or less effective or more expensive in any way or become unavailable to us for any reason, our
business may be materially and adversely affected.
We collaborate with Tencent, one of our principal shareholders and owner of Weixin and QQ, with respect to various
aspects of our business, including our mini-program within Weixin and the entry point to our mini-program in Weixin Pay,
which serves as one of our access points to our platform, as well as services such as payment processing, advertising and
cloud technology. We have entered into a strategic cooperation framework agreement with Tencent, pursuant to which we
and Tencent have agreed to cooperate in a number of areas including payment solutions, cloud services and user
engagement, and to explore and pursue additional opportunities for potential cooperation.
If services provided by Tencent to us become limited, compromised, restricted, curtailed or less effective or become
more expensive or unavailable to us for any reason, including the availability of our mini-program within Weixin and the
entry point to our mini-program in Weixin Pay, our business may be materially and adversely affected. We may also
encounter difficulties in implementing the Strategic Cooperation Framework Agreement, which may divert significant
management attention from existing business operations. Failure to maintain our relationship with Tencent could materially
and adversely affect our business and results of operations. See “Item 7. Major Shareholders and Related Party
Transactions—B. Related Party Transactions.”
Impairment of long-lived assets could materially and adversely affect our results of operations and book value.
We have accumulated long-lived assets as a result of our operations. We review these assets, including intangible
assets with finite lives, for impairment annually and whenever events or changes in circumstances arise that will impact the
future use of these assets. In the event that the book value of long-lived assets is impaired, such impairment would be
charged to earnings in the period when such impairment is determined. Any future impairment of long-lived assets could
have a material and adverse effect on our profitability, results of operations and book value. For more information on our
impairment testing, see note 2 to the consolidated financial statements included elsewhere in this annual report.
We rely on proper operation and maintenance of our mobile platform and internet infrastructure and
telecommunications networks in China. Any malfunction, capacity constraint or operation interruption may have an
adverse impact on our business.
Currently, all of our sales of products are generated online through our Pinduoduo mobile platform. Therefore, the
satisfactory performance, reliability and availability of our mobile platform are critical to our success and our ability to
attract and retain buyers. Our business depends on the performance and reliability of the internet infrastructure in China.
The reliability and availability of our mobile platform depends on telecommunications carriers and other third-party
providers for communications and storage capacity, including bandwidth and server storage, among other things. If we are
unable to enter into and renew agreements with these providers on acceptable terms, or if any of our existing agreements
with such providers are terminated as a result of our breach or otherwise, our ability to provide our services to our buyers
could be adversely affected. Access to internet in China is maintained through state-owned telecommunications carriers
under administrative control, and we obtain access to end-user networks operated by such telecommunications carriers and
internet service providers to give buyers access to our mobile platform. The failure of telecommunications network
operators to provide us with the requisite bandwidth could also interfere with the speed and availability of our mobile
platform. Service interruptions prevent buyers from accessing our mobile platform and placing orders, and frequent
interruptions could frustrate buyers and discourage them from attempting to place orders, which could cause us to lose
buyers and harm our operating results. In addition, we have no control over the costs of the services provided by the
telecommunications operators. If the prices that we pay for telecommunications and internet services rise significantly, our
financial results could be adversely affected.
22
Table of Contents
We may engage in acquisitions, investments or strategic alliances, which could require significant management
attention and materially and adversely affect our business and results of operations.
We may from time to time identify strategic partners to form strategic alliances, invest in or acquire additional assets,
technologies or businesses that are complementary to our existing business. These transactions may involve minority
investments in other companies, acquisitions of controlling stakes in other companies or acquisitions of selected assets.
Any strategic alliances, investments or acquisitions and the subsequent integration of the new assets and businesses
obtained or developed from such transactions into our own may divert management from their primary responsibilities and
subject us to additional liabilities. In addition, the costs of identifying and consummating investments and acquisitions may
be significant. We may also incur costs and experience uncertainties in completing necessary registrations and obtaining
necessary approvals from relevant government authorities in China and elsewhere in the world. The costs and duration of
integrating newly acquired assets and businesses could also materially exceed our expectations. Any such negative
developments could have a material adverse effect on our business, financial condition, results of operations and cash flow.
Our financial results could be adversely affected by our investments or acquisitions. The investments and acquired
assets or businesses may not generate anticipated synergies with our business or achieve anticipated financial growth as we
would expect. They could result in significant investments and goodwill impairment charges and amortization expenses for
other intangible assets, which would adversely affect our financial condition and operating results.
Undetected programming errors or flaws or failure to maintain effective customer service could damage our reputation
or even cause direct loss to us which would materially and adversely affect our results of operations.
Our platform and internal systems rely on software that is highly technical and complex. In addition, our platform and
internal systems depend on the ability of such software to store, retrieve, process and manage an immense amount of data
and the ability of their operators to operate these complex systems properly. The software on which we rely may contain
undetected programming errors or design defects, some of which may only be discovered after the code has been released.
Improper operations or other human errors may also occur from time to time as a result of operating such software and
complex systems. Programming errors or design defects within the software or human errors in connection with the
operation of the software may result in negative experience to buyers using our platform, disruptions to the operations of
our merchants, delay in introductions of new features or enhancements, unintended disclosure of confidential information
of buyers, merchants and our platform or compromise in our ability to provide effective customer service and enjoyable
user engagement or exploitation of loopholes by dishonest buyers or merchants. They could cause damage to our
reputation, loss of buyers or merchants, or direct economic loss to us.
Our business generates and processes a large amount of data, and we are required to comply with PRC and other
applicable laws relating to privacy and cyber security. The improper use or disclosure of data could have a material and
adverse effect on our business and prospects.
Our business generates and processes a large quantity of data. We face risks inherent in handling and protecting large
volume of data. In particular, we face a number of challenges relating to data from transactions and other activities on our
platforms, including:
● protecting the data in and hosted on our system, including against attacks on our system by outside parties or
fraudulent behavior or improper use by our employees;
● addressing concerns related to privacy and sharing, safety, security and other factors; and
● complying with applicable laws, rules and regulations relating to the collection, use, storage, transfer, disclosure
and security of personal information, including any requests from regulatory and government authorities relating
to this data.
23
Table of Contents
The PRC regulatory and enforcement regime with regard to data security and data protection is evolving. We may be
required by Chinese governmental authorities to share personal information and data that we collect to comply with PRC
laws relating to cybersecurity. See “Item 4. Information on the Company—B. Business Overview—Regulation—
Regulations Relating to Internet Information Security and Privacy Protection.” The law imposes heightened regulation and
additional security and privacy protection obligations on operators of critical information infrastructure. The PRC National
Security Law covers various types of national security, including technology security and information security. All the
relevant laws and regulations may result in additional expenses to us and any non-compliance and misuse of or failure to
secure personal information could have a negative impact on our financial results and may subject us to negative publicity,
which could harm our reputation and negatively affect the trading price of our ADSs. There are also uncertainties with
respect to how these laws will be implemented in practice. PRC regulators , including the MIIT and the Cyberspace
Administration of China, or the Cyberspace Administration, have been increasingly focused on regulation in the areas of
data security and data protection. On November 28, 2019, the Secretary Bureau of the Cyberspace Administration of
China, the General Office of the MIIT, the General Office of the Ministry of Public Security and the General Office of the
State Administration for Market Regulation promulgated the Identification Method of Illegal Collection and Use of
Personal Information Through App, which provides guidance for regulatory authorities to identify the illegal collection and
use of personal information through mobile apps and for mobile app operators to conduct self-examination and self-
correction. We expect that data security and data protection compliance will receive greater attention and focus from
regulators, as well as attract continued or greater public scrutiny and attention going forward, which could increase our
compliance costs and subject us to heightened risks and challenges associated with data security and protection. If we are
unable to manage these risks, we could become subject to penalties, including fines, suspension of business and revocation
of required licenses, and our reputation and results of operations could be materially and adversely affected.
In addition, the European Union General Data Protection Regulation (“GDPR”), which came into effect on May 25,
2018, includes operational requirements for companies that receive or process personal data of residents of the European
Economic Area. The GDPR establishes new requirements applicable to the processing of personal data, affords new data
protection rights to individuals and imposes penalties for serious data breaches. Individuals also have a right to
compensation under the GDPR for financial or non-financial losses. Although we do not conduct any business in the
European Economic Area, in the event that residents of the European Economic Area access our website or our mobile
platform and input protected information, we may become subject to provisions of the GDPR. If we are unable to manage
these risks, we could become subject to penalties, fines, suspension of business and revocation of required licenses, and our
reputation and results of operations could be materially and adversely affected. In addition, regulatory authorities around
the world have recently adopted or are considering a number of legislative and regulatory proposals concerning data
protection. These legislative and regulatory proposals, if adopted, and the uncertain interpretations and application thereof
could, in addition to the possibility of fines, result in an order requiring that we change our data practices and policies,
which could have an adverse effect on our business and results of operations.
Failure to protect confidential information of buyers, merchants and our network against security breaches could
damage our reputation and brand and substantially harm our business and results of operations.
A significant challenge to the e-commerce industry is the secure storage of confidential information and its secure
transmission over public networks. A majority of the orders and the payments for products offered on our platform are
made through our mobile app. In addition, all online payments for products sold on our platform are settled through third-
party online payment services. Maintaining complete security on our platform and systems for the storage and transmission
of confidential or private information, such as buyers’ personal information, payment-related information and transaction
information, is essential to maintain consumer confidence in our platform and systems.
24
Table of Contents
We have adopted strict security policies and measures, including encryption technology, to protect our proprietary data
and buyer information. However, advances in technology, the expertise of hackers, new discoveries in the field of
cryptography or other events or developments could result in a compromise or breach of the technology that we use to
protect confidential information. We may not be able to prevent third parties, especially hackers or other individuals or
entities engaging in similar activities through viruses, Trojan horses, malicious software, break-ins, phishing attacks, third-
party manipulation or security breaches, from illegally obtaining such confidential or private information we hold with
respect to buyers and merchants on our platform. Such individuals or entities obtaining confidential or private information
may further engage in various other illegal activities using such information. The methods used by hackers and others
engaging in illegal online activities are increasingly more sophisticated and constantly evolving. Significant capital,
managerial and other resources, including costs incurred to deploy additional personnel and develop network protection
technologies, train employees, and engage third-party experts and consultants, may be required to ensure and enhance
information security or to address the issues caused by such security failure.
In addition, we have limited control or influence over the security policies or measures adopted by third-party
providers of online payment services through which some of our buyers may choose to make payment for purchases. Any
negative publicity on our platform’s safety or privacy protection mechanisms and policies, and any claims asserted against
us or fines imposed upon us as a result of actual or perceived failures, could have a material and adverse effect on our
public image, reputation, financial condition and results of operations. Any compromise of our information security or the
information security measures of our contracted third-party online payment service providers could have a material and
adverse effect on our reputation, business, prospects, financial condition and results of operations.
We currently rely on commercial banks and third-party online payment service providers for payment processing and
escrow services on our platform. If these payment services are restricted or curtailed in any way, are offered to us on
less favorable terms, or become unavailable to us or our buyers for any reason, our business may be materially and
adversely affected.
All online payments for products sold on our platform are settled through third-party online payment service providers.
Our business depends on the billing, payment and escrow systems of these payment service providers to maintain accurate
records of payments of sales proceeds by buyers and collect such payments. If the quality, utility, convenience or
attractiveness of these payment processing and escrow services declines, or we have to change the pattern of using these
payment services for any reason, the attractiveness of our platform could be materially and adversely affected.
Business involving online payment services is subject to a number of risks that could materially and adversely affect
third-party online payment service providers’ ability to provide payment processing and escrow services to us, including:
● dissatisfaction with these online payment services or decreased use of their services by buyers and merchants;
● increasing competition, including from other established Chinese internet companies, payment service providers
and companies engaged in other financial technology services;
● changes to rules or practices applicable to payment systems that link to third-party online payment service
providers;
● breach of buyers’ personal information and concerns over the use and security of information collected from
buyers;
● service outages, system failures or failures to effectively scale the system to handle large and growing transaction
volumes;
● increasing costs to third-party online payment service providers, including fees charged by banks to process
transactions through online payment channels, which would also increase our costs of revenues; and
25
Table of Contents
● failure to manage funds accurately or loss of funds, whether due to employee fraud, security breaches, technical
errors or otherwise.
Certain commercial banks in China impose limits on the amounts that may be transferred by automated payment from
buyers’ bank accounts to their linked accounts with third-party online payment services. We cannot predict whether these
and any additional restrictions that could be put in place would have a material adverse effect on our platform.
The commercial banks and third-party online payment service providers that we work with are subject to the
supervision of the People’s Bank of China, or the PBOC. The PBOC may publish rules, guidelines and interpretations from
time to time regulating the operation of financial institutions and payment service providers that may in turn affect the
pattern of services provided by such entities for us. For example, in November 2017, the PBOC published a notice, or the
PBOC Notice, on the investigation and administration of illegal offering of settlement services by financial institutions and
third-party payment service providers to unlicensed entities. The PBOC Notice intended to prevent unlicensed entities from
using licensed payment service providers as a conduit for conducting the unlicensed payment settlement services, so as to
safeguard the fund security and information security. We believe that our pattern of receiving settlement services from
third-party online payment service providers is not in violation of the PBOC Notice because the relevant commercial bank
opens an internal special account to receive payment from the buyers and we will submit to the bank materials verifying
the truthfulness of the relevant transactions and the bank will also verify other information if it deems necessary before it
distributes the payment to merchants and us. However, we cannot assure you that the PBOC or other governmental
authorities will hold the same view with ours. If required by the PBOC or new legislation, our cooperative payment service
providers will have to suspend their services or explore new models to offer their services to us, we may not be able to
claim our ownership and exclusive control of the payments from the buyers in the bank accounts opened with the relevant
commercial banks, and we may incur additional expenses or invest considerable resources in complying with the
requirements. If the PBOC or other governmental authorities deem our cooperation with payment service providers to be
violative of law, we may also have to suspend or terminate our cooperation with these payment service providers or explore
new models for using their services, and our income derived from the accrued interests in the relevant bank accounts may
be confiscated, and we may be subject to a fine of one to five times of such income.
We cannot assure you that we will be successful in entering and maintaining amicable relationships with these
commercial banks and online payment service providers. Identifying, negotiating and maintaining relationships with these
providers require significant time and resources. Our current agreements with these service providers also do not prohibit
them from working with our competitors. They could choose to terminate their relationships with us or propose terms that
we cannot accept. Moreover, we cannot guarantee that the terms we negotiated with these payment service providers,
including the payment processing fee rates, will remain as favorable. If the terms with these payment service providers
become less favorable to us, such as the increase of payment processing fee rate, we may have to raise the transaction
services fees for certain of our merchants, which may cause us to lose merchants, or absorb the additional costs by
ourselves, both of which may materially and adversely affect our business, financial condition and results of operations.
Furthermore, these service providers may not perform as expected under our agreements with them, and we may have
disagreements or disputes with such payment service providers, any of which could adversely affect our brand and
reputation as well as our business operations.
We do not control Shanghai Fufeitong and the majority of its equity interests is indirectly controlled by our executive
officers. If any conflict arises between us and Shanghai Fufeitong and cannot be resolved in our favor, our business,
financial condition, results of operations and prospects may be materially and adversely affected.
In April 2020, Shanghai Xunmeng, a subsidiary of our VIE, entered into a business cooperation agreement with
Shanghai Fufeitong Information Service Co., Ltd., or Shanghai Fufeitong, pursuant to which both parties agreed to conduct
comprehensive business cooperation in payment services, technical resources and other related professional areas. As
Shanghai Fufeitong is a company which Messrs. Lei Chen and Zhenwei Zheng, our executive officers, indirectly hold
50.01% of the equity interests in, the transaction constitutes our related party transaction. See “Item 7. Major Shareholders
and Related Party Transactions—B. Related Party Transactions—Loan to Ningbo Hexin and Business Cooperation
Agreement with Shanghai Fufeitong” for more details of the transactions.
26
Table of Contents
As Shanghai Fufeitong, which we do not have control over, also provides payment services to other parties from time
to time, we cannot assure you that Shanghai Fufeitong’s transactions with other parties or its pursuit of opportunities and
development would not conflict with our interests. There can be no assurance that Messrs. Lei Chen and Zhenwei Zheng,
in light of their control over Shanghai Fufeitong, would act in favor of our interests if any conflict arises between us and
Shanghai Fufeitong. If the conflict cannot be resolved in our favor, our business, financial condition, results of operations
and prospects may be materially and adversely affected.
Moreover, due to our cooperation with Shanghai Fufeitong, any event that negatively affects Shanghai Fufeitong may
also negatively affect the perception of our customers, merchants, regulators and other third parties on us and may further
adversely and materially affect our reputation, business, results of operations and prospects.
Any lack of additional requisite approvals, licenses or permits or failure to comply with any requirements of PRC laws,
regulations and policies may materially and adversely affect our daily operations and hinder our growth.
Our business is subject to governmental supervision and regulation by the relevant PRC governmental authorities,
including the Ministry of Commerce, or MOFCOM, the Ministry of Industry and Information Technology, or the MIIT, the
National Radio and Television Administration, or the NRTA, and other governmental authorities in charge of the relevant
categories of products sold by us. Together, these government authorities promulgate and enforce regulations that cover
many aspects of the operation of online retailing and related business, including entry into this industry, the scope of
permissible business activities, licenses and permits for various business activities, and foreign investment. We are required
to hold a number of licenses and permits in connection with our business operation, including the ICP license and
approvals for the establishment of foreign-invested enterprises engaging in the sale of goods over the internet. We have in
the past held and currently hold all material licenses and permits described above and may apply for certain additional
licenses with the government authorities in the future to maintain compliance especially when we take on new business
activities. See “Item 4. Information on the Company—B. Business Overview—Regulation—Regulations Relating to
Foreign Investment” and “Item 4. Information on the Company—B. Business Overview—Regulation—Licenses, Permits
and Filings.”
As of the date of this annual report, we have not been subject to penalties or other disciplinary action from the relevant
governmental authorities regarding conducting our business without proper approvals, licenses and permits. However, we
cannot assure you that we will not receive such notice of warning or be subject to penalties or other disciplinary actions in
the future. As the online retail industry is still evolving in China, new laws and regulations may be adopted from time to
time to require additional licenses and permits other than those we currently have, and to address new issues that arise from
time to time. As a result, substantial uncertainties exist regarding the interpretation and implementation of current and any
future PRC laws and regulations applicable to online retail businesses. If the PRC government considers us operating
without proper approvals, licenses or permits or promulgates new laws and regulations that require additional approvals or
licenses or impose additional restrictions on the operation of any part of our business, it has the power, among other things,
to levy fines, confiscate our income, revoke our business licenses, and require us to discontinue our relevant business or
impose restrictions on the affected portion of our business. Any of these and other regulatory actions by the PRC
governmental authorities, including issuance of official notices, change of policies, promulgation of regulations and
imposition of sanctions, may adversely affect our business and have a material and adverse effect on our results of
operations. In addition, if we were to use new or additional domain names to conduct our business, we would have to apply
for the same set of government authorizations or amend the current ones. There is no assurance that we will be able to
complete such procedures timely.
27
Table of Contents
PRC laws and regulations may also require e-commerce platform operators to take measures to protect consumer
rights. Failure to do so may subject the e-commerce platform operators to rectification requirements and penalties.
Although we endeavor to comply with the relevant laws and regulations, there is no assurance that we can timely react to
the evolving requirements. If the competent governmental authorities deem that we fail to meet such requirements, we may
receive warnings, be ordered to make rectifications, or subject to other administrative sanctions and/or penalties that may
have a material adverse effect on our reputation, business, financial condition and results of operations. For example, in
January 2019, we were ordered by the local regulatory authority to pay a fine of RMB30,000 for failure to comply with the
legal requirements with respect to the display and update of individual merchants’ identities and full disclosure of platform
policies.
We are required by PRC laws and regulations to comply with labor laws and regulations and pay overtime
compensation and various government statutory employee benefit plans, including medical insurance, maternity insurance,
workplace injury insurance, unemployment insurance and pension benefits through a PRC government-mandated multi-
employer defined contribution plan. The relevant government agencies may examine whether an employer has made
adequate payments of the requisite statutory employee benefits, and those employers who fail to make adequate payments
may be subject to late payment fees, fines and/or other penalties. If the relevant PRC authorities determine that we shall
make supplemental contributions, that we are not in compliance with labor laws and regulations, or that we are subject to
fines or other legal sanctions, such as order of timely rectification, our business, financial condition and results of
operations may be adversely affected.
Pursuant to the Individual Income Tax Law of the PRC, as amended on August 31, 2018, which became effective on
January 1, 2019, an individual’s taxable income shall be an amount equal to such individual’s total annual income less a
general deductible of RMB60,000 and various special deductibles permitted under relevant laws. Determination and
calculation of such special deductibles in accordance with relevant laws may result in an increase of our operating costs
and expenses. However, as these laws and implementing rules were only recently promulgated and their interpretations
have not been entirely settled yet, our determination and calculation of the special deductibles based on our understanding
may be different from how the tax authorities or our employees would do. These differences may result in inquiries or
reassessment by the tax authorities, as well as disputes with our employees.
We may increasingly become a target for public scrutiny, including complaints to regulatory agencies, negative media
coverage, and public dissemination of malicious reports or accusations about our business, all of which could severely
damage our reputation and materially and adversely affect our business and prospects.
We process an extremely large number of transactions on a daily basis on our platform, and the high volume of
transactions taking place on our platform as well as publicity about our business create the possibility of heightened
attention from the public, regulators and the media. Heightened regulatory and public concerns over consumer protection
and consumer safety issues may subject us to additional legal and social responsibilities and increased scrutiny and
negative publicity over these issues, due to the large number of transactions that take place on our platform and the
increasing scope of our overall business operations. In addition, changes in our services or policies have resulted and could
result in objections by members of the public, the traditional, new and social media, social network operators, merchants on
our platform or others. From time to time, these objections or allegations, regardless of their veracity, may result in
consumer dissatisfaction, public protests or negative publicity, which could result in government inquiry or substantial
harm to our brand, reputation and operations.
Moreover, as our business expands and grows, both organically and through acquisitions of and investments in other
businesses, domestically and internationally, we may be exposed to heightened public scrutiny in jurisdictions where we
already operate as well as in new jurisdictions where we may operate. There is no assurance that we would not become a
target for regulatory or public scrutiny in the future or that scrutiny and public exposure would not severely damage our
reputation as well as our business and prospects.
28
Table of Contents
Furthermore, our brand name and our business may be harmed by aggressive marketing and communication strategies
by third parties. We may be subject to government or regulatory investigation or third-party claims as a result and we may
be required to spend significant time and incur substantial costs to react to and address these consequences. There is no
assurance that we will be able to effectively refute each of the allegations within a reasonable period of time, or at all.
Additionally, public allegations, directly or indirectly, against us or the merchants on our platform, may be posted on
internet forums, blogs or websites by anyone on an anonymous basis. The availability of information on social media
platforms is virtually immediate, as is its impact. Social media platforms may not necessarily filter or check the accuracy of
information before publishing them and we are often afforded little or no time to respond. As a result, our reputation may
be materially and adversely affected and our ability to attract and retain customers and maintain our market share and
profitability may suffer.
Our online marketing services constitute internet advertisement, which subjects us to laws, rules and regulations
applicable to advertising.
We derive a significant amount of our revenues from online marketing services and other related services. In
July 2016, SAIC promulgated the Interim Administrative Measures on Internet Advertising, or the Internet Advertising
Measures, effective September 2016, pursuant to which internet advertisements are defined as any commercial advertising
that directly or indirectly promotes goods or services through internet media in any form including paid-for search results.
See “Item 4. Information on the Company—B. Business Overview—Regulation— Regulations Relating to Internet
Advertising Business.” Under the Internet Advertising Measures, our online marketing services and other related services
constitute internet advertisement.
PRC advertising laws, rules and regulations require advertisers, advertising operators and advertising distributors to
ensure that the content of the advertisements they prepare or distribute is fair and accurate and is in full compliance with
applicable law. In 2019, 89.0% of our revenues were derived from online marketing services. Violation of these laws,
rules or regulations may result in penalties, including fines, confiscation of advertising fees and orders to cease
dissemination of the advertisements. In circumstances involving serious violations, the PRC government may suspend or
revoke a violator’s business license or license for operating advertising business. In addition, the Internet Advertising
Measures require paid-for search results to be distinguished from natural search results so that consumers will not be
misled as to the nature of these search results. As such, we are obligated to distinguish from others the merchants who
purchase online marketing and related services or the relevant listings by these merchants. Complying with these
requirements and any penalties or fines for any failure to comply may significantly reduce the attractiveness of our
platform and increase our costs and could have a material adverse effect on our business, financial condition and results of
operations.
In addition, for advertising content related to specific types of products and services, advertisers, advertising operators
and advertising distributors must confirm that the advertisers have obtained requisite government approvals, including the
advertiser’s operating qualifications, proof of quality inspection of the advertised products, and, with respect to certain
industries, government approval of the content of the advertisement and filing with the local authorities. Pursuant to the
Internet Advertising Measures, we are required to take steps to monitor the content of advertisements displayed on our
platforms. This requires considerable resources and time, and could significantly affect the operation of our business, while
at the same time also exposing us to increased liability under the relevant laws, rules and regulations. The costs associated
with complying with these laws, rules and regulations, including any penalties or fines for our failure to so comply if
required, could have a material adverse effect on our business, financial condition and results of operations. Any further
change in the classification of our online marketing and other related services by the PRC government may also
significantly disrupt our operations and materially and adversely affect our business and prospects.
29
Table of Contents
We may be subject to intellectual property infringement claims, which may be expensive to defend and may disrupt our
business and operations.
We cannot be certain that our operations or any aspects of our business do not or will not infringe upon or otherwise
violate patents, copyrights or other intellectual property rights held by third parties. We have been, and from time to time in
the future may be, subject to legal proceedings and claims relating to the intellectual property rights of others. In addition,
there may be other third-party intellectual property that is infringed by products offered by our merchants and our services
or other aspects of our business. There could also be existing patents of which we are not aware that our products may
inadvertently infringe. We cannot assure you that holders of patents purportedly relating to some aspect of our technology
platform or business, if any such holders exist, would not seek to enforce such patents against us in China, the United
States or any other jurisdictions. Further, the application and interpretation of China’s patent laws and the procedures and
standards for granting patents in China are still evolving and are uncertain, and we cannot assure you that PRC courts or
regulatory authorities would agree with our analysis. If we are found to have violated the intellectual property rights of
others, we may be subject to liability for our infringement activities or may be prohibited from using such intellectual
property, and we may incur licensing fees or be forced to develop alternatives of our own. In addition, we may incur
significant expenses, and may be forced to divert management’s time and other resources from our business and operations
to defend against these infringement claims, regardless of their merits. Successful infringement or licensing claims made
against us may result in significant monetary liabilities and may materially disrupt our business and operations by
restricting or prohibiting our use of the intellectual property in question. Finally, we use open source software in connection
with our products and services. Companies that incorporate open source software into their products and services have,
from time to time, faced claims challenging the ownership of open source software and compliance with open source
license terms. As a result, we could be subject to suits by parties claiming ownership of what we believe to be open source
software or noncompliance with open source licensing terms. Some open source software licenses require users who
distribute open source software as part of their software to publicly disclose all or part of the source code to such software
and make available any derivative works of the open source code on unfavorable terms or at no cost. Any requirement to
disclose our source code or pay damages for breach of contract could be harmful to our business, results of operations and
financial condition.
We may not be able to prevent others from unauthorized use of our intellectual property, which could harm our business
and competitive position.
We regard our trademarks, copyrights, patents, domain names, know-how, proprietary technologies, and similar
intellectual property as critical to our success, and we rely on a combination of intellectual property laws and contractual
arrangements, including confidentiality, invention assignment and non-compete agreements with our employees and others,
to protect our proprietary rights. We are aware of certain copycat websites that attempt to cause confusion or diversion of
traffic from us at the moment, against which we are considering initiating lawsuits, and we may continue to become an
attractive target to such attacks in the future because of our brand recognition in the online retail industry in China. Despite
these measures, any of our intellectual property rights could be challenged, invalidated, circumvented or misappropriated,
or such intellectual property may not be sufficient to provide us with competitive advantages. In addition, there can be no
assurance that (i) our application for registration of trademarks, patents, and other intellectual property rights will be
approved, (ii) any intellectual property rights will be adequately protected, or (iii) such intellectual property rights will not
be challenged by third parties or found by a judicial authority to be invalid or unenforceable. Further, because of the rapid
pace of technological change in our industry, parts of our business rely on technologies developed or licensed by third
parties, and we may not be able to obtain or continue to obtain licenses and technologies from these third parties at all or on
reasonable terms.
30
Table of Contents
Confidentiality, invention assignment and non-compete agreements may be breached by counterparties, and there may
not be adequate remedies available to us for any such breach. Accordingly, we may not be able to effectively protect our
intellectual property rights or to enforce our contractual rights. Policing any unauthorized use of our intellectual property is
difficult and costly and the steps we take may be inadequate to prevent the infringement or misappropriation of our
intellectual property. In the event that we resort to litigation to enforce our intellectual property rights, such litigation could
result in substantial costs and a diversion of our management and financial resources, and could put our intellectual
property at risk of being invalidated or narrowed in scope. We can provide no assurance that we will prevail in such
litigation, and even if we do prevail, we may not obtain a meaningful recovery. In addition, our trade secrets may be leaked
or otherwise become available to, or be independently discovered by, our competitors. Any failure in maintaining,
protecting or enforcing our intellectual property rights could have a material adverse effect on our business, financial
condition and results of operations.
Tightening of tax compliance efforts that affect merchants on our platform could materially and adversely affect our
business, financial condition and results of operations.
The e-commerce industry in China is still developing, and the PRC government may require e-commerce platform
operators, such as our company, to assist in the collection of taxes with respect to income generated by merchants from
transactions conducted on our platforms. Merchants operating businesses on our platform may be deficient in their tax
registration. PRC tax authorities may enforce registration requirements that target these merchants on our platforms and
may request our assistance in these efforts. As a result, these merchants may be subject to more stringent tax compliance
requirements and liabilities and their business on our platforms could suffer or they could decide to terminate their
relationship with us, which could in turn negatively affect us. According to the E-Commerce Law, the e-commerce
platform operators shall submit the identity information and the information related to tax payment of the merchants on the
platform to the tax authorities. We may also be requested by tax authorities to assist in the enforcement of tax regulations,
such as disclosure of transaction records and bank account information of the merchants, and withholding against our
merchants. If that occurs, we may lose existing merchants and potential merchants might not be willing to operate their
business on our platforms. We may be subject to liabilities if we fail to cooperate with the relevant PRC tax authorities to
assist in the enforcement as requested. Stricter tax enforcement by the PRC tax authorities may also reduce the activities by
merchants on our platforms. Any of these results could have a material adverse effect on our business, financial condition
and results of operations.
Our business may be subject to seasonal sales fluctuations which could result in volatility or have an adverse effect on
the market price of our ADSs.
We experience seasonality in our business, reflecting a combination of seasonal fluctuations in internet usage and
traditional retail seasonality patterns. For example, we generally experience less user traffic and purchase orders during the
Chinese New Year holiday season in the first quarter of each year. Furthermore, online sales in China are significantly
higher in the fourth quarter of each calendar year than in the preceding three quarters. Due to the foregoing factors, our
financial condition and results of operations for future quarters may continue to fluctuate and our historical quarterly
results may not be comparable to future quarters. As a result, the trading price of our ADSs may fluctuate from time to time
due to seasonality.
31
Table of Contents
We have granted and may continue to grant options and other types of awards under our share incentive plan, which
may result in increased share-based compensation expenses.
We adopted a global share incentive plan in 2015 (the "2015 Plan") and a share incentive plan in 2018 ( the "2018
Plan")for the purpose of granting share-based compensation awards to employees, directors and consultants to incentivize
their performance and align their interests with ours. Under each of the share incentive plans, we are authorized to grant
options and other types of awards. The maximum aggregate number of ordinary shares which may be issued pursuant to all
awards under the 2015 Plan is 581,972,860 Class A ordinary shares, subject to adjustment and amendment, and the
maximum aggregate number of shares which may be issued pursuant to all awards under the 2018 Plan was initially
363,130,400 Class A ordinary shares, plus an annual increase on the first day of each fiscal year of our company during the
term of the 2018 Plan commencing with the fiscal year beginning January 1, 2019, by an amount equal to the lessor of
(i) 1.0% of the total number of shares issued and outstanding on the last day of the immediately preceding fiscal year, and
(ii) such number of shares as may be determined by our board of directors. As of December 31, 2019, options to purchase
581,972,860 Class A ordinary shares had been granted and outstanding under the 2015 Plan, and options to purchase
116,348,240 Class A ordinary shares and restricted share units representing 41,375,068 Class A ordinary shares had been
granted and outstanding under the 2018 Plan, each excluding awards that were forfeited or cancelled after the relevant
grant dates. In addition, we granted 254,473,500 Class A ordinary shares in the second quarter of 2018 to a company
controlled by our founder to reward him for his contributions to us. We recognize substantial share-based compensation
expenses in our consolidated financial statements in connection with these grants, and may continue to incur such expenses
in the future.
We believe the granting of share-based compensation is of significant importance to our ability to attract and retain key
personnel and employees, and we will continue to grant share-based compensation to employees in the future. As a result,
our expenses associated with share-based compensation may increase, which may have an adverse effect on our results of
operations. We may re-evaluate the vesting schedules, lock-up period, exercise price or other key terms applicable to the
grants under our currently effective share incentive plans from time to time. If we choose to do so, our expenses associated
with share-based compensation may increase, which may have an adverse effect on our results of operations.
If we fail to implement and maintain an effective system of internal control over financial reporting, our ability to
accurately and timely report our financial results or prevent fraud may be adversely affected, and investor confidence
and the market price of our ADSs may be adversely impacted.
We are subject to the reporting requirements of the Exchange Act of 1934, or Exchange Act, the Sarbanes-Oxley Act
of 2002, or Sarbanes-Oxley Act, and the rules and regulations of the Nasdaq Global Select Market. The Sarbanes-Oxley
Act requires, among other things, that we maintain effective disclosure controls and procedures and internal control over
financial reporting. Commencing with our fiscal year ending December 31, 2019, we must perform system and process
evaluation and testing of our internal control over financial reporting to allow management to report on the effectiveness of
our internal control over financial reporting in our Form 20-F filing for that year, as required by Section 404 of the
Sarbanes-Oxley Act . In addition, as we have ceased to be an “emerging growth company” as such term is defined in the
JOBS Act, our independent registered public accounting firm must attest to and report on the effectiveness of our internal
control over financial reporting beginning with our annual report for the fiscal year ending December 31, 2019. Our
management has concluded that our internal control over financial reporting was effective as of December 31, 2019. See
"Item 15. Controls and Procedures. If we fail to implement and maintain an effective system of internal control, we will
not be able to conclude and our independent registered public accounting firm will not be able to report that we have
effective internal control over financial reporting in accordance with the Sarbanes-Oxley Act in our future annual report on
Form 20-F covering the fiscal year in which this failure occurs. Effective internal control over financial reporting is
necessary for us to produce reliable financial reports. Any failure to maintain effective internal control over financial
reporting could prevent us from identifying fraud and result in the loss of investor confidence in the reliability of our
financial statements, which in turn could have a material and adverse effect on the trading price of our ADSs. Furthermore,
we may need to incur additional costs and use additional management and other resources as our business and operations
further expand or in an effort to remediate any significant control deficiencies that may be identified in the future.
32
Table of Contents
If we cannot obtain sufficient cash when we need it, we may not be able to meet our payment obligations under our
convertible notes.
In September 2019, we issued US$1 billion in aggregate principal amount of convertible senior notes due 2024, which
included the exercise in full by the initial purchasers of their option to purchase up to an additional US$125 million in
aggregate principal amount of the notes. The notes do not bear regular interest, and will mature on October 1, 2024. We
may not have sufficient funds to fulfill our payment obligations under the notes.
We derive most of our revenues from, and hold most of our assets through, our subsidiaries. As a result, we may rely
in part upon distributions and advances from our subsidiaries in order to help us meet our payment obligations under the
notes and our other obligations. Our subsidiaries are distinct legal entities and do not have any obligation, legal or
otherwise, to provide us with distributions or advances. We may face tax or other adverse consequences, or legal
limitations, on our ability to obtain funds from these entities. In addition, our ability to obtain external financing in the
future is subject to a variety of uncertainties, including:
● our financial condition, results of operations and cash flows;
● general market conditions for financing activities by internet companies; and
● economic, political and other conditions in the PRC and elsewhere.
If we are unable to obtain funding in a timely manner or on commercially acceptable terms, we may not be able to
meet our payment obligations under our convertible notes, which in turn may constitute a default under existing and future
agreements governing our indebtedness.
Changes in U.S. and international trade policies, particularly with regard to China, may adversely impact our business
and operating results.
The U.S. government has recently proposed, among other actions, imposing new or higher tariffs on specified products
imported from China to penalize China for what it characterizes as unfair trade practices and China has responded by
proposing new or higher tariffs on specified products imported from the United States. For example, in 2018, the United
States announced three finalized tariffs that applied exclusively to products imported from China, totaling approximately
US$250 billion, and in May 2019 the United States increased from 10% to 25% the rate of certain tariffs previously levied
on Chinese products. Trade tension between China and the United States may intensify, and the United States may adopt
even more drastic measures in the future. Although cross-border business may not be an area of our focus, if we plan to sell
our products internationally in the future, any unfavorable government policies on international trade, such as capital
controls or tariffs, may affect the demand for our products and services, impact the competitive position of our products or
prevent us from being able to sell products in certain countries. If any new tariffs, legislation and/or regulations are
implemented, or if existing trade agreements are renegotiated such changes could have an adverse effect on our business,
financial condition, results of operations. In addition, future actions or escalations by either the United States or China that
affect trade relations may cause global economic turmoil and potentially have a negative impact on our business.
In addition, recent economic and trade sanctions threatened and/or imposed by the U.S. government on a number of
China-based technology companies have raised concerns as to whether, in the future, there may be additional regulatory
challenges or enhanced restrictions involving other China-based technology companies in areas such as data security,
information technology or other business activities. For instance, in May 2019, the U.S. government announced an order
effectively barring American firms from selling components and software to a Chinese company and its affiliates. This
restriction, and similar or more expansive restrictions that may be imposed by the U.S. or other jurisdictions in the future,
may materially and adversely affect our ability to acquire technologies, systems or devices that may be important to our
technology infrastructure, service offerings and business operations.
33
Table of Contents
We do not have any business insurance coverage.
The insurance industry in China is still at an early stage of development, and insurance companies in China currently
offer limited business-related insurance products. We do not have any business liability or disruption insurance to cover our
operations. We have determined that the costs of insuring for these risks and the difficulties associated with acquiring such
insurance on commercially reasonable terms make it impractical for us to have such insurance. Any uninsured risks may
result in substantial costs and the diversion of resources, which could adversely affect our results of operations and
financial condition.
A severe or prolonged downturn in the global economy could materially and adversely affect our business and financial
condition.
COVID-19 had a negative impact on the Chinese and the global economy in the first quarter of 2020. Whether this
will lead to a prolonged downturn in the economy is still unknown. Even before the outbreak of COVID-19, the global
macroeconomic environment is facing numerous challenges. There was considerable uncertainty over the long-term effects
of the expansionary monetary and fiscal policies which had been adopted by the central banks and financial authorities of
some of the world’s leading economies, including the United States and China, even before 2020. Unrest, terrorist threats
and the potential for war in the Middle East and elsewhere may increase market volatility across the globe. There have also
been concerns about the relationship between China and other countries, including the surrounding Asian countries, which
may potentially have economic effects. In particular, there is significant uncertainty about the future relationship between
the United States and China with respect to trade policies, treaties, government regulations and tariffs. Any severe or
prolonged slowdown in the global economy may materially and adversely affect our business, results of operations and
financial condition.
We and certain of our directors and officers have been named as defendants in several shareholder class action
lawsuits, which could have a material adverse impact on our business, financial condition, results of operation, cash
flows and reputation.
Between August and December 2018, several putative shareholder class action lawsuits have been filed against us and
certain of our directors and officers. See “Item 8. Financial Information—A. Consolidated Statements and Other Financial
Information—Legal Proceedings” for more details. We are currently unable to estimate the potential loss, if any, associated
with the resolution of the outstanding lawsuit, if it proceeds. We may continue to be a target for lawsuits in the future,
including putative class action lawsuits brought by shareholders. There can be no assurance that we will be able to prevail
in our defense or reverse any unfavorable judgment on appeal, and we may decide to settle lawsuits on unfavorable terms.
Any adverse outcome of these cases, including any plaintiffs’ appeal of the judgment in these cases, could result in
payments of substantial monetary damages or fines, or changes to our business practices, and thus have a material adverse
effect on our business, financial condition, results of operation, cash flows and reputation. In addition, all or part of the
defense costs, or any liabilities that may arise from these matters may not be covered by any insurance. The litigation
process may utilize a significant portion of our cash resources and divert management’s attention from the day-to-day
operations of our company, all of which could harm our business. We also may be subject to claims for indemnification
related to these matters, and we cannot predict the impact that indemnification claims may have on our business or
financial results.
34
Table of Contents
We are a “controlled company” within the meaning of the Nasdaq Stock Market Rules and, as a result, may rely on
exemptions from certain corporate governance requirements that provide protection to shareholders of other
companies.
We are a “controlled company” as defined under the Nasdaq Stock Market Rules because our founder, chairman of the
board of directors and chief executive officer, Mr. Zheng Huang, owns more than 50% of our total voting power. For so
long as we remain a controlled company under that definition, we are permitted to elect to rely, and may rely, on certain
exemptions from corporate governance rules, including an exemption from the rule that a majority of our board of directors
must be independent directors or that we have to establish a nominating committee and a compensation committee
composed entirely of independent directors. As a result, you will not have the same protection afforded to shareholders of
companies that are subject to these corporate governance requirements. We currently do not plan to rely on these
exemptions.
Risks Related to Our Corporate Structure
If the PRC government finds that the agreements that establish the structure for operating some of our operations in
China do not comply with PRC regulations relating to the relevant industries, or if these regulations or the
interpretation of existing regulations change in the future, we could be subject to severe penalties or be forced to
relinquish our interests in those operations.
Foreign ownership of certain parts of our businesses including value-added telecommunications services is subject to
restrictions under current PRC laws and regulations. For example, foreign investors are not allowed to own more than 50%
of the equity interests in a value-added telecommunications service provider (excluding e-commerce) and any such foreign
investor must have experience in providing value-added telecommunications services overseas and maintain a good track
record.
We are a Cayman Islands company and our PRC subsidiaries, namely our WFOEs, are considered foreign-invested
enterprises. Accordingly, our WFOEs are not eligible to provide value-added telecommunications services. As a result, we
currently conduct our e-commerce business activities through Shanghai Xunmeng, a subsidiary of our VIE, which holds a
VATS License for (i) online data processing and transaction processing business (operating e-commerce), (ii) internet
content-related services, (iii) domestic call center business, and (iv) information services. Shanghai Xunmeng is wholly
owned by our VIE, namely Hangzhou Aimi, which has obtained a VATS License covering online data processing and
transaction processing business (operating commerce, excluding internet finance and e-hailing services) and internet
content-related services (excluding information search and inquiry services and real-time interactive information services).
We entered into a series of contractual arrangements with Hangzhou Aimi and its shareholders, which enable us to (i)
exercise effective control over our VIE, (ii) receive substantially all of the economic benefits of our VIE, and (iii) have an
exclusive option to purchase all or part of the equity interests and assets in our VIE when and to the extent permitted by
PRC law. As a result of these contractual arrangements, we have control over and are the primary beneficiary of our VIE
and hence consolidate its financial results and its subsidiary into our consolidated financial statements under U.S. GAAP.
See “Item 4. Information on the Company—C. Organizational Structure” for further details.
In the opinion of our PRC legal counsel, (i) the ownership structures of our VIE in China and Hangzhou Weimi are not
in violation of applicable PRC laws and regulations currently in effect; and (ii) the contractual arrangements between
Hangzhou Weimi, our VIE and its shareholders governed by PRC law are legal, valid, binding and enforceable in
accordance with its terms and applicable PRC laws. However, our PRC legal counsel has also advised us that there are
substantial uncertainties regarding the interpretation and application of current and future PRC laws, regulations and rules.
Accordingly, the PRC regulatory authorities may take a view that is contrary to the opinion of our PRC legal counsel. It is
uncertain whether any new PRC laws or regulations relating to variable interest entity structures will be adopted or if
adopted, what they would provide. If we or our VIE are found to be in violation of any existing or future PRC laws or
regulations, or fail to obtain or maintain any of the required permits or approvals, the relevant PRC regulatory authorities
would have broad discretion to take action in dealing with such violations or failures, including:
● revoking the business license and/or operating license of such entities;
35
Table of Contents
● discontinuing or placing restrictions or onerous conditions on our operations;
● imposing fines, confiscating the income from Hangzhou Weimi or our VIE, or imposing other requirements with
which we or our VIE may not be able to comply;
● requiring us to restructure our ownership structure or operations, including terminating the contractual
arrangements with our VIE and deregistering the equity pledges of our VIE, which in turn would affect our ability
to consolidate, derive economic interests from, or exert effective control over our VIE; or
● restricting or prohibiting our use of the proceeds of offshore financing to finance our business and operations in
China.
The imposition of any of these penalties would result in a material and adverse effect on our ability to conduct our
business. In addition, it is unclear what impact the PRC government actions would have on us and on our ability to
consolidate the financial results of our VIE in our consolidated financial statements, if the PRC government authorities
were to find our legal structure and contractual arrangements to be in violation of PRC laws and regulations. If the
imposition of any of these government actions causes us to lose our right to direct the activities of our VIE or our right to
receive substantially all the economic benefits and residual returns from our VIE and we are not able to restructure our
ownership structure and operations in a satisfactory manner, we would no longer be able to consolidate the financial results
of our VIE in our consolidated financial statements. Either of these results, or any other significant penalties that might be
imposed on us in this event, would have a material adverse effect on our financial condition and results of operations.
We face uncertainties with respect to the implementation of the Foreign Investment Law and how it may impact the
viability of our current corporate structure, corporate governance and business operations.
On March 15, 2019, the National People’s Congress approved the Foreign Investment Law, which has taken effect on
January 1, 2020 and replaced the Sino-Foreign Equity Joint Venture Enterprise Law, the Sino-Foreign Cooperative Joint
Venture Enterprise Law and the Foreign Owned Enterprise Law, together with their implementation rules and ancillary
regulations, to become the legal foundation for foreign investment in the PRC. The Foreign Investment Law embodies the
legislative efforts to unify the corporate legal requirements for both foreign and domestic investments. Under the Foreign
Investment Law, “foreign investment” refers to the investment activities directly or indirectly conducted by foreign
individuals, enterprises or other foreign entities in China. The Foreign Investment Law stipulates three forms of foreign
investment, and does not explicitly stipulate contractual arrangements as a form of foreign investment. On December 26,
2019, the State Council promulgated the Implementation Regulations on the Foreign Investment Law, which came into
effect on January 1, 2020. The Implementation Regulations on the Foreign Investment Law does not stipulate whether
contractual arrangements should be deemed as a form of foreign investment. Before clarification or confirmation by future
laws, administrative regulations or provisions promulgated by the State Council on nature of contractual arrangements,
there is no assurance that contractual arrangement would not be considered as foreign investment under the Foreign
Investment Law. In addition, the Foreign Investment Law stipulates that activities constituting “foreign investment”
includes foreign investors investing in China through “any other methods” under laws, administrative regulations, or
provisions prescribed by the State Council. The State Council may in the future enact laws or issue administrative
regulations or provisions to classify contractual arrangements as a form of foreign investment, at which time it would be
uncertain as to regulation on such contractual arrangements and whether such contractual arrangements would be deemed
to be in violation of the foreign investment restrictions. There is no guarantee that our contractual arrangements and our
business will not be materially and adversely affected in the future due to changes in PRC laws and regulations. If future
laws, administrative regulations or provisions prescribed by the State Council mandate further actions to be completed by
companies with existing contractual arrangements, we may face substantial uncertainties as to the timely completion of
such actions. Failure to take timely and appropriate measures to cope with any of these or similar regulatory compliance
challenges could materially and adversely affect our current corporate structure and business operations.
36
Table of Contents
The rights and functions of the Pinduoduo Partnership, once effective, may impact your ability to appoint executive
directors and nominate the chief executive officer of the company, and the interests of the Pinduoduo Partnership may
conflict with your interests.
Under our currently effective articles of association, the Pinduoduo Partnership, upon and for so long as certain
conditions are satisfied, will be entitled to nominate two executive directors (if there are no more than 5 directors on the
board of directors) or three executive directors (if there are more than 5 but no more than 9 directors on the board of
directors) and nominate the chief executive officer candidate of our company. Such executive director candidate duly
nominated by the Pinduoduo Partnership shall be approved and appointed by our board of directors and serve as an
executive director of our company until expiry of his or her terms (if any), removal by the Pinduoduo Partnership, the
shareholders by an ordinary resolution or vacation of office if such executive director, among other things, resigns his
office by notice in writing to the Company or dies or is found to be or becomes of unsound mind. The chief executive
officer candidate nominated by the Pinduoduo Partnership shall stand for appointment by the nominating and corporate
governance committee of the board of directors. If the candidate is not appointed by the nominating and corporate
governance committee in accordance with the then effective articles of association of the company, the Pinduoduo
Partnership may nominate a replacement nominee until the nominating and corporate governance committee appoints such
nominee as chief executive officer, or if the nominating and corporate governance committee fails to appoint more than
three candidates nominated by the Pinduoduo Partnership consecutively, the board of directors may then nominate and
appoint any person to serve as the chief executive officer of the Company in accordance with the then effective articles of
association of the company. See “Item 6. Directors, Senior Management and Employees—A. Directors and Senior
Management— Pinduoduo Partnership.” This governance structure and contractual arrangements will limit your ability to
influence corporate matters, including the matters determined at the board level.
In addition, the interests of the Pinduoduo Partnership may not coincide with your interests, including certain
managerial decisions such as partner compensation. For example, each year, once an aggregate bonus pool is approved by
the board of directors, the partnership committee of the Pinduoduo Partnership will make further determinations as to,
among other things, the allocation of the current bonus pool among all partners and these allocations may not be entirely
aligned with the interest of shareholders who are not partners. Because the partners may be largely comprised of members
of our management team, the Pinduoduo Partnership and its executive director nominees may focus on the operational and
financial results that may differ from the expectations and desires of shareholders. To the extent that the interests of the
Pinduoduo Partnership differ from your interests on certain matters, you may be disadvantaged.
We rely on contractual arrangements with our VIE and its shareholders for a large portion of our business operations,
which may not be as effective as direct ownership in providing operational control.
Our VIE contributed 100%, 77.3% and 58.5% of our consolidated total revenues in 2017, 2018 and 2019, respectively.
We have relied and expect to continue to rely on contractual arrangements with our VIE and its shareholders to conduct our
business. For a description of these contractual arrangements, see “Item 4. Information on the Company—C.
Organizational Structure.” These contractual arrangements may not be as effective as direct ownership in providing us with
control over our VIE. For example, our VIE and its shareholders could breach their contractual arrangements with us by,
among other things, failing to conduct their operations in an acceptable manner or taking other actions that are detrimental
to our interests.
37
Table of Contents
If we had direct ownership of our VIE, we would be able to exercise our rights as a shareholder to effect changes in the
board of directors of our VIE, which in turn could implement changes, subject to any applicable fiduciary obligations, at
the management and operational level. However, under the current contractual arrangements, we rely on the performance
by our VIE and its shareholders of their obligations under the contracts to exercise control over our VIE. The shareholders
of our consolidated VIE may not act in the best interests of our company or may not perform their obligations under these
contracts. Such risks exist throughout the period in which we intend to operate certain portions of our business through the
contractual arrangements with our VIE. If any dispute relating to these contracts remains unresolved, we will have to
enforce our rights under these contracts through the operations of PRC law and arbitration, litigation and other legal
proceedings and therefore will be subject to uncertainties in the PRC legal system. See “Item 3. Key Information—D. Risk
Factors—Risks Related to Our Corporate Structure—Any failure by our VIE or its shareholders to perform their
obligations under our contractual arrangements with them would have a material and adverse effect on our business.”
Therefore, our contractual arrangements with our VIE may not be as effective in ensuring our control over the relevant
portion of our business operations as direct ownership would be.
Any failure by our VIE or its shareholders to perform their obligations under our contractual arrangements with them
would have a material and adverse effect on our business.
We refer to the shareholders of our VIE as its nominee shareholders because although they remain the holders of
equity interests on record in each of our VIE, each such shareholder has irrevocably authorized Hangzhou Weimi to
exercise his, her or its rights as a shareholder of the relevant VIE pursuant to the terms of the relevant shareholders’ voting
rights proxy agreement. However, if our VIE or its shareholders fail to perform their respective obligations under the
contractual arrangements, we may have to incur substantial costs and expend additional resources to enforce such
arrangements. We may also have to rely on legal remedies under PRC law, including seeking specific performance or
injunctive relief, and claiming damages, which may not be effective under PRC law. For example, if the shareholders of
our VIE refuse to transfer their equity interest in our VIE to us or our designee if we exercise the purchase option pursuant
to these contractual arrangements, or if they otherwise act in bad faith toward us, then we may have to take legal actions to
compel them to perform their contractual obligations.
All of the agreements under our contractual arrangements are governed by PRC law and provide for the resolution of
disputes through arbitration in China. Accordingly, these contracts would be interpreted in accordance with PRC law and
any disputes would be resolved in accordance with PRC legal procedures. The legal system in the PRC is not as developed
as in some other jurisdictions, such as the United States. As a result, uncertainties in the PRC legal system could limit our
ability to enforce these contractual arrangements. See “Item 3. Key Information—D. Risk Factors—Risks Related to Doing
Business in China—Uncertainties with respect to the PRC legal system and changes in laws and regulations in China could
adversely affect us.” Meanwhile, there are very few precedents and little formal guidance as to how contractual
arrangements in the context of a VIE should be interpreted or enforced under PRC law. There remain significant
uncertainties regarding the ultimate outcome of such arbitration should legal action become necessary. In addition, under
PRC law, rulings by arbitrators are final, parties cannot appeal the arbitration results in courts, and if the losing parties fail
to carry out the arbitration awards within a prescribed time limit, the prevailing parties may only enforce the arbitration
awards in PRC courts through arbitration award recognition proceedings, which would require additional expenses and
delay. In the event we are unable to enforce these contractual arrangements, or if we suffer significant delays or other
obstacles in the process of enforcing these contractual arrangements, we may not be able to exert effective control over our
VIE, and our ability to conduct our business may be negatively affected.
38
Table of Contents
The shareholders of our VIE may have potential conflicts of interest with us, which may materially and adversely affect
our business and financial condition.
Messrs. Lei Chen and Qin Sun are beneficiary owners of our company and hold 86.6% and 13.4% equity interests in
our VIE, respectively. The shareholders of our VIE may have potential conflicts of interest with us. See “Item 4.
Information on the Company—C. Organizational Structure.” These shareholders may breach, or cause our VIE to breach,
or refuse to renew, the existing contractual arrangements we have with them and our VIE, which would have a material and
adverse effect on our ability to effectively control our VIE and receive economic benefits from it. For example, the
shareholders may be able to cause our agreements with our VIE to be performed in a manner adverse to us by, among other
things, failing to remit payments due under the contractual arrangements to us on a timely basis. We cannot assure you that
when conflicts of interest arise any or all of these shareholders will act in the best interests of our company or such
conflicts will be resolved in our favor.
Currently, we do not have any arrangements to address potential conflicts of interest between these shareholders and
our company, except that we could exercise our purchase option under the exclusive option agreements with these
shareholders to request them to transfer all of their equity interests in the VIE to a PRC entity or individual designated by
us, to the extent permitted by PRC law. We also rely on these shareholders to abide by the laws of the Cayman Islands,
which provide that directors and officers owe a fiduciary duty to the company that requires them to act in good faith and in
what they believe to be the best interests of the company and not to use their position for personal gains. The shareholders
of our VIE have executed shareholders’ voting rights proxy agreement to appoint Hangzhou Weimi or a person designated
by Hangzhou Weimi to vote on their behalf and exercise voting rights as shareholders of our VIE. If we cannot resolve any
conflict of interest or dispute between us and the shareholders of our variable interest entities, we would have to rely on
legal proceedings, which could result in disruption of our business and subject us to substantial uncertainty as to the
outcome of any such legal proceedings.
The shareholders of our VIE may be involved in personal disputes with third parties or other incidents that may have
an adverse effect on their respective equity interests in the relevant VIE and the validity or enforceability of our contractual
arrangements with the relevant entity and its shareholders. For example, in the event that any of the shareholders of our
VIE divorces his spouse, the spouse may claim that the equity interest of the relevant VIE held by such shareholder is part
of their community property and should be divided between such shareholder and his spouse. If such claim is supported by
the court, the relevant equity interest may be obtained by the shareholder’s spouse or another third party who is not subject
to obligations under our contractual arrangements, which could result in a loss of the effective control over the relevant
VIE by us. Similarly, if any of the equity interests of our VIE is inherited by a third party with whom the current
contractual arrangements are not binding, we could lose our control over the relevant VIE or have to maintain such control
by incurring unpredictable costs, which could cause significant disruption to our business and operations and harm our
financial condition and results of operations.
Although under our current contractual arrangements, (i) the spouse of each of the shareholders of our VIE has
executed a spousal consent letter, under which the spouse agrees that she will not raise any claims against the equity
interest, and will take every action to ensure the performance of the contractual arrangements, and (ii) it is expressly
provided that the rights and obligations under the contractual agreements shall be equally effective and binding on the heirs
and successors of the parties thereto, or that our VIE shall not assign or delegate its rights and obligations under the
contractual agreements to third parties without our prior consent, we cannot assure you that these undertakings and
arrangements will be complied with or effectively enforced. In the case any of them is breached or becomes unenforceable
and leads to legal proceedings, it could disrupt our business, distract our management’s attention and subject us to
substantial uncertainties as to the outcome of any such legal proceedings.
39
Table of Contents
Contractual arrangements in relation to our VIE may be subject to scrutiny by the PRC tax authorities and they may
determine that we or our VIE owes additional taxes, which could negatively affect our financial condition and the value
of your investment.
Under applicable PRC laws and regulations, arrangements and transactions among related parties may be subject to
audit or challenge by the PRC tax authorities. We could face material and adverse tax consequences if the PRC tax
authorities determine that the VIE contractual arrangements were not entered into on an arm’s length basis in such a way as
to result in an impermissible reduction in taxes under applicable PRC laws, rules and regulations, and adjust the income of
our VIE in the form of a transfer pricing adjustment. A transfer pricing adjustment could, among other things, result in a
reduction of expense deductions recorded by our VIE for PRC tax purposes, which could in turn increase its tax liabilities
without reducing Hangzhou Weimi’s tax expenses. In addition, the PRC tax authorities may impose late payment fees and
other penalties on our VIE for the adjusted but unpaid taxes according to the applicable regulations. Our financial position
could be materially and adversely affected if our VIE’s tax liabilities increase or if it is required to pay late payment fees
and other penalties.
We may lose the ability to use and enjoy assets held by our VIE that are material to the operation of certain portion of
our business if the VIE goes bankrupt or become subject to a dissolution or liquidation proceeding.
As part of our contractual arrangements with our VIE, our VIE and its subsidiaries hold certain assets that are material
to the operation of certain portion of our business, including intellectual property and premise and VATS licenses. If our
VIE goes bankrupt and all or part of its assets become subject to liens or rights of third-party creditors, we may be unable
to continue some or all of our business activities, which could materially and adversely affect our business, financial
condition and results of operations. Under the contractual arrangements, our VIE may not, in any manner, sell, transfer,
mortgage or dispose of their assets or legal or beneficial interests in the business without our prior consent. If our VIE
undergoes a voluntary or involuntary liquidation proceeding, independent third-party creditors may claim rights to some or
all of these assets, thereby hindering our ability to operate our business, which could materially and adversely affect our
business, financial condition and results of operations.
If the chops of our PRC subsidiaries and our VIE are not kept safely, are stolen or are used by unauthorized persons or
for unauthorized purposes, the corporate governance of these entities could be severely and adversely compromised.
In China, a company chop or seal serves as the legal representation of the company towards third parties even when
unaccompanied by a signature. Each legally registered company in China is required to maintain a company chop, which
must be registered with the local Public Security Bureau. In addition to this mandatory company chop, companies may
have several other chops which can be used for specific purposes. The chops of our PRC subsidiaries and VIE are
generally held securely by personnel designated or approved by us in accordance with our internal control procedures. To
the extent those chops are not kept safely, are stolen or are used by unauthorized persons or for unauthorized purposes, the
corporate governance of these entities could be severely and adversely compromised and those corporate entities may be
bound to abide by the terms of any documents so chopped, even if they were chopped by an individual who lacked the
requisite power and authority to do so. In addition, if the chops are misused by unauthorized persons, we could experience
disruption to our normal business operations. We may have to take corporate or legal action, which could involve
significant time and resources to resolve while distracting management from our operations.
40
Table of Contents
Risks Related to Doing Business in China
Changes in China’s economic, political or social conditions or government policies could have a material adverse effect
on our business and operations.
Substantially all of our assets and operations are located in China. Accordingly, our business, financial condition,
results of operations and prospects may be influenced to a significant degree by political, economic and social conditions in
China generally. The Chinese economy differs from the economies of most developed countries in many respects,
including the level of government involvement, level of development, growth rate, control of foreign exchange and
allocation of resources. Although the Chinese government has implemented measures emphasizing the utilization of
market forces for economic reform, the reduction of state ownership of productive assets, and the establishment of
improved corporate governance in business enterprises, a substantial portion of productive assets in China is still owned by
the government. In addition, the Chinese government continues to play a significant role in regulating industry
development by imposing industrial policies.
The Chinese government also exercises significant control over China’s economic growth through allocating
resources, controlling payment of foreign currency-denominated obligations, setting monetary policy, and providing
preferential treatment to particular industries or companies.
While the Chinese economy has experienced significant growth over the past decades, growth has been uneven, both
geographically and among various sectors of the economy, and the rate of growth has been slowing since 2012. According
to the National Bureau of Statistics of China, China’s real GDP growth rate was 6.9% in 2017, which slowed to 6.7% in
2018, and further slowed to 6.1% in 2019. There have also been concerns about the relationships among China and other
Asian countries, the relationship between China and the United States, as well as the relationship between the United States
and certain Asian countries such as North Korea, which may result in or intensify potential conflicts in relation to
territorial, regional security and trade disputes. Any adverse changes in economic conditions in China, in the policies of the
Chinese government or in the laws and regulations in China could have a material adverse effect on the overall economic
growth of China. Such developments could adversely affect our business and operating results, lead to reduction in demand
for our services and adversely affect our competitive position. Any disruptions or continuing or worsening slowdown could
significantly reduce domestic commerce activities in China, which could lead to significant reduction in merchants’
demand for and spending on the various services we offer. An economic downturn, whether actual or perceived, a further
decrease in economic growth rates or an otherwise uncertain economic outlook in China could have a material adverse
effect on business and consumer spending and, as a result, adversely affect our business, financial condition and results of
operations. The Chinese government has implemented various measures to encourage economic growth and guide the
allocation of resources. Some of these measures may benefit the overall Chinese economy, but may have a negative effect
on us. For example, our financial condition and results of operations may be adversely affected by government control over
capital investments or changes in tax regulations. The growth rate of the Chinese economy has gradually slowed since
2010, and is likely to adversely affected by outbreak of COVID-19 in 2020. Any prolonged slowdown in the Chinese
economy may reduce the demand for our services and materially and adversely affect our business and results of
operations.
In addition, because we hold a significant amount of cash and cash equivalents and short-term investments, if financial
institutions and issuers of financial instruments that we hold become insolvent or if the market for these financial
instruments become illiquid as a result of a severe economic downturn, our business and financial condition could be
materially and adversely affected.
Uncertainties with respect to the PRC legal system and changes in laws and regulations in China could adversely affect
us.
We conduct our business primarily through our PRC subsidiaries and our VIE and one of its subsidiaries in China. Our
operations in China are governed by PRC laws and regulations. Our PRC subsidiaries are subject to laws and regulations
applicable to foreign investment in China. The PRC legal system is a civil law system based on written statutes. Unlike the
common law system, prior court decisions under the civil law system may be cited for reference but have limited
precedential value. In addition, any new or changes in PRC laws and regulations related to foreign investment in China
could affect the business environment and our ability to operate our business in China.
41
Table of Contents
From time to time, we may have to resort to administrative and court proceedings to enforce our legal rights. Any
administrative and court proceedings in China may be protracted, resulting in substantial costs and diversion of resources
and management attention. Since PRC administrative and court authorities have significant discretion in interpreting and
implementing statutory provisions and contractual terms, it may be more difficult to evaluate the outcome of administrative
and court proceedings and the level of legal protection we enjoy than in more developed legal systems. These uncertainties
may impede our ability to enforce the contracts we have entered into and could materially and adversely affect our business
and results of operations.
Furthermore, the PRC legal system is based in part on government policies and internal rules, some of which are not
published on a timely basis or at all and may have retroactive effect. As a result, we may not be aware of our violation of
any of these policies and rules until sometime after the violation. Such unpredictability towards our contractual, property
and procedural rights could adversely affect our business and impede our ability to continue our operations.
We may be adversely affected by the complexity, uncertainties and changes in PRC regulation of internet-related
businesses and companies, and any lack of requisite approvals, licenses or permits applicable to our business may have
a material adverse effect on our business and results of operations.
The PRC government extensively regulates the internet industry, including foreign ownership of, and the licensing and
permit requirements pertaining to, companies in the internet industry. These internet-related laws and regulations are
relatively new and evolving, and their interpretation and enforcement involve significant uncertainties. As a result, in
certain circumstances it may be difficult to determine what actions or omissions may be deemed to be in violation of
applicable laws and regulations.
We only have contractual control over our Pinduoduo mobile app. We do not directly own the mobile app due to the
restrictions on foreign investment in businesses providing value-added telecommunications services in China, including e-
commerce services and internet content-related services. This may significantly disrupt our business, subject us to
sanctions, compromise enforceability of related contractual arrangements, or have other harmful effects on us.
The evolving PRC regulatory system for the internet industry may lead to the establishment of new regulatory
agencies. For example, in May 2011, the State Council announced the establishment of the State Internet Information
Office (with the involvement of the State Council Information Office, MIIT, and the Ministry of Public Security). The
primary role of the State Internet Information Office is to facilitate the policy-making and legislative development in this
field, to direct and coordinate with the relevant departments in connection with online content administration and to deal
with cross-ministry regulatory matters in relation to the internet industry.
The Circular on Strengthening the Administration of Foreign Investment in and Operation of Value-added
Telecommunications Business, issued by the MIIT in July 2006, prohibits domestic telecommunications service providers
from leasing, transferring or selling telecommunications business operating licenses to any foreign investor in any form, or
providing any resources, sites or facilities to any foreign investor for their illegal operation of a telecommunications
business in China. According to this circular, either the holder of a value-added telecommunications services operation
permit or its shareholders must directly own the domain names and trademarks used by such license holders in their
provision of value-added telecommunications services. The circular also requires each license holder to have the necessary
facilities, including servers, for its approved business operations and to maintain such facilities in the regions covered by its
license. Shanghai Xunmeng owns the relevant domain names and trademarks in connection with our online platform and
has the necessary personnel to operate our online platform.
42
Table of Contents
The interpretation and application of existing PRC laws, regulations and policies and possible new laws, regulations or
policies relating to the internet industry have created substantial uncertainties regarding the legality of existing and future
foreign investments in, and the businesses and activities of, internet businesses in China, including our business. We cannot
assure you that we have obtained all the permits or licenses required for conducting our business in China or will be able to
maintain our existing licenses or obtain new ones. If the PRC government considers that we were operating without the
proper approvals, licenses or permits or promulgates new laws and regulations that require additional approvals or licenses
or imposes additional restrictions on the operation of any part of our business, it has the power, among other things, to levy
fines, confiscate our income, revoke our business licenses, and require us to discontinue our relevant business or impose
restrictions on the affected portion of our business. Any of these actions by the PRC government may have a material
adverse effect on our business and results of operations.
Discontinuation of any preferential tax treatments or imposition of any additional taxes could adversely affect our
financial condition and results of operations.
Shanghai Xunmeng, a subsidiary of our VIE, was recognized as a “high and new technology enterprise” in November
2018 and was eligible for a preferential tax rate of 15% from 2018 to 2020. In April 2018, Shenzhen Qianhai Xinzhijiang
Information Technology Co., Ltd., a subsidiary of ours located in Qianhai District, Shenzhen, Guangdong Province, was
eligible for a preferential tax rate of 15% and has been applying such preferential tax rate since then. The preferential tax
rate is available from 2014 to 2020 and is awarded to companies located in Qianhai District that operate in certain
encouraged industries. Government subsidies and preferential tax treatments are subject to discretions of the relevant
governmental authorities and our eligibility for them are therefore out of our control. Discontinuation of any preferential
tax treatments or imposition of any additional taxes could adversely affect our financial condition and results of operations.
You may experience difficulties in effecting service of legal process, enforcing foreign judgments or bringing actions in
China against us or our management named in the annual report based on foreign laws.
We are an exempted company incorporated under the laws of the Cayman Islands, we conduct substantially all of our
operations in China and substantially all of our assets are located in China. In addition, all our senior executive officers
reside within China for a significant portion of the time and most are PRC nationals. As a result, it may be difficult for you
to effect service of process upon us or those persons inside mainland China. It may also be difficult for you to enforce in
U.S. courts judgments obtained in U.S. courts based on the civil liability provisions of the U.S. federal securities laws
against us and our officers and directors as most of our current directors and officers are nationals and residents of
countries other than the United States and substantially all of the assets of these persons are located outside the United
States. In addition, there is uncertainty as to whether the courts of the Cayman Islands or the PRC would recognize or
enforce judgments of U.S. courts against us or such persons predicated upon the civil liability provisions of the securities
laws of the United States or any state.
The recognition and enforcement of foreign judgments are provided for under the PRC Civil Procedures Law. PRC
courts may recognize and enforce foreign judgments in accordance with the requirements of the PRC Civil Procedures Law
based either on treaties between China and the country where the judgment is made or on principles of reciprocity between
jurisdictions. China does not have any treaties or other forms of written arrangement with the United States that provide for
the reciprocal recognition and enforcement of foreign judgments. In addition, according to the PRC Civil Procedures Law,
the PRC courts will not enforce a foreign judgment against us or our directors and officers if they decide that the judgment
violates the basic principles of PRC laws or national sovereignty, security or public interest. As a result, it is uncertain
whether and on what basis a PRC court would enforce a judgment rendered by a court in the United States.
43
Table of Contents
We may rely on dividends and other distributions on equity paid by our PRC subsidiaries to fund any cash and
financing requirements we may have, and any limitation on the ability of our PRC subsidiaries to make payments to us
could have a material and adverse effect on our ability to conduct our business.
We are a Cayman Islands holding company and we rely principally on dividends and other distributions on equity from
our PRC subsidiaries for our cash requirements, including the funds necessary to pay dividends and other cash distributions
to our shareholders for services of any debt we may incur. If any of our PRC subsidiaries incur debt on its own behalf in
the future, the instruments governing the debt may restrict its ability to pay dividends or make other distributions to us.
Under PRC laws and regulations, our PRC subsidiaries, each of which is a wholly foreign-owned enterprise may pay
dividends only out of its respective accumulated profits as determined in accordance with PRC accounting standards and
regulations. In addition, a wholly foreign-owned enterprise is required to set aside at least 10% of its after-tax profits each
year, if any, to fund a certain statutory reserve fund, until the aggregate amount of such fund reaches 50% of its registered
capital. At its discretion, a wholly foreign-owned enterprise may allocate a portion of its after-tax profits based on PRC
accounting standards to a staff welfare and bonus fund. These reserve fund and staff welfare and bonus fund cannot be
distributed to us as dividends.
Our PRC subsidiaries generate primarily all of their revenue in Renminbi, which is not freely convertible into other
currencies. As result, any restriction on currency exchange may limit the ability of our PRC subsidiaries to use their
Renminbi revenues to pay dividends to us.
The PRC government may continue to strengthen its capital controls, and more restrictions and substantial vetting
process may be put forward by SAFE for cross-border transactions falling under both the current account and the capital
account. Any limitation on the ability of our PRC subsidiaries to pay dividends or make other kinds of payments to us
could materially and adversely limit our ability to grow, make investments or acquisitions that could be beneficial to our
business, pay dividends, or otherwise fund and conduct our business.
In addition, the Enterprise Income Tax Law and its implementation rules provide that a withholding tax rate of up to
10% will be applicable to dividends payable by Chinese companies to non-PRC-resident enterprises unless otherwise
exempted or reduced according to treaties or arrangements between the PRC central government and governments of other
countries or regions where the non-PRC-resident enterprises are incorporated.
PRC regulation of loans to and direct investment in PRC entities by offshore holding companies and governmental
control of currency conversion may delay or prevent us from using the proceeds of our offshore financing to make
loans or additional capital contributions to our PRC subsidiaries, which could materially and adversely affect our
liquidity and our ability to fund and expand our business.
We are an offshore holding company conducting our operations in China. We may make loans to our PRC subsidiaries
and VIE subject to the approval, registration, and filing with governmental authorities and limitation of amount, or we may
make additional capital contributions to our wholly foreign-owned subsidiaries in China. Any loans to our wholly foreign-
owned subsidiaries in China, which are treated as foreign-invested enterprises under PRC law, are subject to foreign
exchange loan registrations. In addition, a foreign invested enterprise shall use its capital pursuant to the principle of
authenticity and self-use within its business scope. The capital of a foreign invested enterprise shall not be used for the
following purposes: (i) directly or indirectly used for payment beyond the business scope of the enterprises or the payment
prohibited by relevant laws and regulations; (ii) directly or indirectly used for investment in securities or investments other
than banks’ principal-secured products unless otherwise provided by relevant laws and regulations; (iii) the granting of
loans to non-affiliated enterprises, except where it is expressly permitted in the business license; and (iv) paying the
expenses related to the purchase of real estate that is not for self-use (except for the foreign-invested real estate
enterprises).
44
Table of Contents
In light of the various requirements imposed by PRC regulations on loans to and direct investment in PRC entities by
offshore holding companies, we cannot assure you that we will be able to complete the necessary government registrations
or obtain the necessary government approvals or filings on a timely basis, if at all, with respect to future loans by us to our
PRC subsidiary or VIE or with respect to future capital contributions by us to our PRC subsidiary. If we fail to complete
such registrations or obtain such approvals, our ability to use the proceeds from our offshore financing and to capitalize or
otherwise fund our PRC operations may be negatively affected, which could materially and adversely affect our liquidity
and our ability to fund and expand our business.
Fluctuations in exchange rates could have a material and adverse effect on our results of operations and the value of
your investment.
The conversion of Renminbi into foreign currencies, including U.S. dollars, is based on rates set by the People’s Bank
of China. The Renminbi has fluctuated against the U.S. dollar, at times significantly and unpredictably. The value of
Renminbi against the U.S. dollar and other currencies is affected by changes in China’s political and economic conditions
and by China’s foreign exchange policies, among other things. We cannot assure you that Renminbi will not appreciate or
depreciate significantly in value against the U.S. dollar in the future. It is difficult to predict how market forces or PRC or
U.S. government policy may impact the exchange rate between Renminbi and the U.S. dollar in the future.
Any significant appreciation or depreciation of Renminbi may materially and adversely affect our revenues, earnings
and financial position, and the value of, and any dividends payable on, our ADSs in U.S. dollars. For example, to the extent
that we need to convert U.S. dollars we receive from our initial public offerings, follow-on offering or convertible senior
notes offering into Renminbi for our operations, appreciation of the Renminbi against the U.S. dollar would have an
adverse effect on the Renminbi amount we would receive from the conversion. Conversely, if we decide to convert our
Renminbi into U.S. dollars for the purpose of making payments for dividends on our ordinary shares or ADSs or for other
business purposes, appreciation of the U.S. dollar against the Renminbi would have a negative effect on the U.S. dollar
amount available to us.
Very limited hedging options are available in China to reduce our exposure to exchange rate fluctuations. As of
December 31, 2019, we have not entered into any hedging transactions in an effort to reduce our exposure to foreign
currency exchange risk. While we may decide to enter into hedging transactions in the future, the availability and
effectiveness of these hedges may be limited and we may not be able to adequately hedge our exposure or at all. In
addition, our currency exchange losses may be magnified by PRC exchange control regulations that restrict our ability to
convert Renminbi into foreign currency. As a result, fluctuations in exchange rates may have a material adverse effect on
your investment.
Governmental control of currency conversion may limit our ability to utilize our revenues effectively and affect the
value of your investment.
The PRC government imposes controls on the convertibility of the Renminbi into foreign currencies and, in certain
cases, the remittance of currency out of China. We receive substantially all of our revenues in Renminbi. Under our current
corporate structure, our Cayman Islands holding company primarily relies on dividend payments from our PRC subsidiary
to fund any cash and financing requirements we may have. Under existing PRC foreign exchange regulations, payments of
current account items, including profit distributions, interest payments and trade and service-related foreign exchange
transactions, can be made in foreign currencies without prior approval of SAFE by complying with certain procedural
requirements. Specifically, under the existing exchange restrictions, without prior approval of SAFE, cash generated from
the operations of our PRC subsidiary in China may be used to pay dividends to our company. However, approval from or
registration with appropriate government authorities is required where Renminbi is to be converted into foreign currency
and remitted out of China to pay capital expenses such as the repayment of loans denominated in foreign currencies. As a
result, we need to obtain SAFE approval to use cash generated from the operations of our PRC subsidiary and VIE to pay
off their respective debt in a currency other than Renminbi owed to entities outside China, or to make other capital
expenditure payments outside China in a currency other than Renminbi.
45
Table of Contents
In light of the flood of capital outflows from China, the PRC government may from time to time impose more
restrictive foreign exchange policies and step up scrutiny of major outbound capital movement. More restrictions and
substantial vetting process may be required by SAFE or other government authorities to regulate cross-border transactions
falling under the capital account. The PRC government may at its discretion restrict access to foreign currencies for current
account transactions in the future. If the foreign exchange control system prevents us from obtaining sufficient foreign
currencies to satisfy our foreign currency demands, we may not be able to pay dividends in foreign currencies to our
shareholders, including holders of our ADSs.
Certain PRC regulations may make it more difficult for us to pursue growth through acquisitions.
Among other things, the Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, or
the M&A Rules, adopted by six PRC regulatory agencies in 2006 and amended in 2009, established additional procedures
and requirements that could make merger and acquisition activities by foreign investors more time-consuming and
complex. Such regulation requires, among other things, that MOFCOM be notified in advance of any change-of-control
transaction in which a foreign investor acquires control of a PRC domestic enterprise and involves any of the following
circumstances: (i) any important industry is concerned, (ii) such transaction involves factors that impact or may impact
national economic security, or (iii) such transaction will lead to a change in control of a domestic enterprise which holds a
famous trademark or PRC time-honored brand. Moreover, the Anti-Monopoly Law promulgated by the Standing
Committee of the NPC which became effective in 2008 requires that transactions which are deemed concentrations and
involve parties with specified turnover thresholds must be cleared by MOFCOM before they can be completed. In addition,
PRC national security review rules that became effective in September 2011 require acquisitions by foreign investors of
PRC companies engaged in military related or certain other industries that are crucial to national security be subject to
security review before consummation of any such acquisition. We may pursue potential strategic acquisitions that are
complementary to our business and operations. Complying with the requirements of these regulations to complete such
transactions could be time-consuming, and any required approval processes, including obtaining approval or clearance
from MOFCOM, may delay or inhibit our ability to complete such transactions, which could affect our ability to expand
our business or maintain our market share.
PRC regulations relating to offshore investment activities by PRC residents may limit our PRC subsidiaries’ ability to
change their registered capital or distribute profits to us or otherwise expose us or our PRC resident beneficial owners
to liability and penalties under PRC laws.
In July 2014, SAFE promulgated the Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic
Residents’ Offshore Investment and Financing and Roundtrip Investment Through Special Purpose Vehicles, or SAFE
Circular 37. SAFE Circular 37 requires PRC residents (including PRC individuals and PRC corporate entities as well as
foreign individuals that are deemed as PRC residents for foreign exchange administration purpose) to register with SAFE
or its local branches in connection with their direct or indirect offshore investment activities. SAFE Circular 37 further
requires amendment to the SAFE registrations in the event of any changes with respect to the basic information of the
offshore special purpose vehicle, such as change of a PRC individual shareholder, name and operation term, or any
significant changes with respect to the offshore special purpose vehicle, such as increase or decrease of capital
contribution, share transfer or exchange, or mergers or divisions. SAFE Circular 37 is applicable to our shareholders who
are PRC residents and may be applicable to any offshore acquisitions that we make in the future.
If our shareholders who are PRC residents fail to make the required registration or to update the previously filed
registration, our PRC subsidiaries may be prohibited from distributing their profits or the proceeds from any capital
reduction, share transfer or liquidation to us, and we may also be prohibited from making additional capital contributions
into our PRC subsidiaries. In February 2015, SAFE promulgated a Notice on Further Simplifying and Improving Foreign
Exchange Administration Policy on Direct Investment, or SAFE Notice 13, effective June 2015. Under SAFE Notice 13,
applications for foreign exchange registration of inbound foreign direct investments and outbound overseas direct
investments, including those required under SAFE Circular 37, will be filed with qualified banks instead of SAFE. The
qualified banks will directly examine the applications and accept registrations under the supervision of SAFE.
46
Table of Contents
All of our shareholders who we are aware of being subject to the SAFE regulations have completed the initial
registrations with the local SAFE branch or qualified banks as required by SAFE Circular 37. However, we may not be
informed of the identities of all the PRC residents holding direct or indirect interest in our company, and we cannot provide
any assurance that these PRC residents will comply with our request to make or obtain any applicable registrations or
continuously comply with all requirements under SAFE Circular No. 37 or other related rules. The failure or inability of
the relevant shareholders to comply with the registration procedures set forth in these regulations may subject us to fines
and legal sanctions, such as restrictions on our cross-border investment activities, on the ability of our wholly foreign-
owned subsidiaries in China to distribute dividends and the proceeds from any reduction in capital, share transfer or
liquidation to us. Moreover, failure to comply with the various foreign exchange registration requirements described above
could result in liability under PRC law for circumventing applicable foreign exchange restrictions. As a result, our business
operations and our ability to distribute profits to you could be materially and adversely affected.
Any failure to comply with PRC regulations regarding the registration requirements for employee stock incentive plans
may subject the PRC plan participants or us to fines and other legal or administrative sanctions.
In February 2012, SAFE promulgated the Notices on Issues Concerning the Foreign Exchange Administration for
Domestic Individuals Participating in Stock Incentive Plan of Overseas Publicly Listed Company, replacing earlier rules
promulgated in 2007. Pursuant to these rules, PRC citizens and non-PRC citizens who reside in China for a continuous
period of not less than one year who participate in any stock incentive plan of an overseas publicly listed company, subject
to a few exceptions, are required to register with SAFE through a domestic qualified agent, which could be the PRC
subsidiaries of such overseas-listed company, and complete certain other procedures. In addition, an overseas-entrusted
institution must be retained to handle matters in connection with the exercise or sale of stock options and the purchase or
sale of shares and interests. We and our executive officers and other employees who are PRC citizens or who reside in the
PRC for a continuous period of not less than one year and who have been granted options are subject to these regulations as
our company is an overseas-listed company. Failure to complete SAFE registrations may subject them to fines of up to
RMB300,000 for entities and up to RMB50,000 for individuals, and legal sanctions and may also limit our ability to
contribute additional capital into our PRC subsidiary and limit our PRC subsidiary’s ability to distribute dividends to us.
We also face regulatory uncertainties that could restrict our ability to adopt additional incentive plans for our directors,
executive officers and employees under PRC law. See “Item 4. Information on the Company—B. Business Overview—
Regulation—Regulations Relating to Foreign Exchange—Regulations on Stock Incentive Plans.”
In addition, the State Administration of Taxation, or SAT, has issued certain circulars concerning employee share
options and restricted shares. Under these circulars, our employees working in China who exercise share options or are
granted restricted shares will be subject to PRC individual income tax. Our PRC subsidiaries have obligations to file
documents related to employee share options or restricted shares with relevant tax authorities and to withhold individual
income taxes of those employees who exercise their share options. If our employees fail to pay or we fail to withhold their
income taxes according to relevant laws and regulations, we may face sanctions imposed by the tax authorities or other
PRC government authorities. See “Item 4. Information on the Company—B. Business Overview—Regulation—
Regulations Relating to Foreign Exchange—Regulations on Stock Incentive Plans.”
47
Table of Contents
Certain of our leasehold interests in leased properties have not been registered with the relevant PRC government
authorities as required by PRC law, which may expose us to potential fines.
Certain of our leasehold interests in leased properties have not been registered with the relevant PRC government
authorities as required by PRC law, which may expose us to potential fines if we fail to remediate after receiving any notice
from the relevant PRC government authorities. In case of failure to register or file a lease, the parties to the unregistered
lease may be ordered to make rectifications (which would involve registering such leases with the relevant authority)
before being subject to penalties. The penalty ranges from RMB1,000 to RMB10,000 for each unregistered lease, at the
discretion of the relevant authority. The law is not clear as to which of the parties, the lessor or the lessee, is liable for the
failure to register the lease. Although we have proactively requested that the applicable lessors complete or cooperate with
us to complete the registration in a timely manner, we are unable to control whether and when such lessors will do so. In
the event that a fine is imposed on both the lessor and lessee, and if we are unable to recover from the lessor any fine paid
by us, such fine will be borne by us.
If we are classified as a PRC resident enterprise for PRC income tax purposes, such classification could result in
unfavorable tax consequences to us and our non-PRC shareholders or ADS holders.
Under the PRC Enterprise Income Tax Law and its implementation rules, an enterprise established outside of the PRC
with “de facto management body” within the PRC is considered a “resident enterprise” and will be subject to the enterprise
income tax on its global income at the rate of 25%. The implementation rules define the term “de facto management body”
as the body that exercises full and substantial control and overall management over the business, productions, personnel,
accounts and properties of an enterprise. In 2009, the State Administration of Taxation, or SAT, issued a circular, known as
SAT Circular 82, which provides certain specific criteria for determining whether the “de facto management body” of a
PRC-controlled enterprise that is incorporated offshore is located in China. Although this circular only applies to offshore
enterprises controlled by PRC enterprises or PRC enterprise groups, not those controlled by PRC individuals or foreigners,
the criteria set forth in the circular may reflect SAT’s general position on how the “de facto management body” text should
be applied in determining the tax resident status of all offshore enterprises. According to SAT Circular 82, an offshore
incorporated enterprise controlled by a PRC enterprise or a PRC enterprise group will be regarded as a PRC tax resident by
virtue of having its “de facto management body” in China and will be subject to PRC enterprise income tax on its global
income only if all of the following conditions are met: (i) the primary location of the day-to-day operational management is
in the PRC; (ii) decisions relating to the enterprise’s financial and human resource matters are made or are subject to
approval by organizations or personnel in the PRC; (iii) the enterprise’s primary assets, accounting books and records,
company seals, and board and shareholder resolutions, are located or maintained in the PRC; and (iv) at least 50% of
voting board members or senior executives habitually reside in the PRC.
We believe that we are not a PRC resident enterprise for PRC tax purposes. However, the tax resident status of an
enterprise is subject to determination by the PRC tax authorities and uncertainties remain with respect to the interpretation
of the term “de facto management body.” If the PRC tax authorities determine that we are a PRC resident enterprise for
enterprise income tax purposes, we could be subject to PRC tax at a rate of 25% on our worldwide income, which could
materially reduce our net income, and we may be required to withhold a 10% withholding tax from dividends we pay to
our shareholders that are non-resident enterprises, including the holders of our ADSs. In addition, non-resident enterprise
shareholders (including our ADS holders) may be subject to PRC tax on gains realized on the sale or other disposition of
ADSs or ordinary shares, if such income is treated as sourced from within the PRC. Furthermore, if we are deemed a PRC
resident enterprise, dividends payable to our non-PRC individual shareholders (including our ADS holders) and any gain
realized on the transfer of ADSs or ordinary shares by such shareholders may be subject to PRC tax at a rate of 10% in the
case of non-PRC enterprises or a rate of 20% in the case of non-PRC individuals unless a reduced rate is available under an
applicable tax treaty. It is unclear whether non-PRC shareholders of our company would be able to claim the benefits of
any tax treaties between their country of tax residence and the PRC in the event that we are treated as a PRC resident
enterprise. Any such tax may reduce the returns on your investment in the ADSs or ordinary shares.
48
Table of Contents
We face uncertainty with respect to indirect transfers of equity interests in PRC resident enterprises by their non-PRC
holding companies.
Pursuant to the Notice on Strengthening Administration of Enterprise Income Tax for Share Transfers by Non-PRC
Resident Enterprises, or SAT Circular 698, issued by SAT in 2009 with retroactive effect from January 1, 2008, where a
non-resident enterprise transfers the equity interests of a PRC resident enterprise indirectly by disposition of the equity
interests of an overseas holding company, or an Indirect Transfer, and such overseas holding company is located in a tax
jurisdiction that: (i) has an effective tax rate less than 12.5% or (ii) does not tax foreign income of its residents, the non-
resident enterprise, being the transferor, shall report to the competent tax authority of the PRC resident enterprise this
Indirect Transfer.
In February 2015, SAT issued a Public Notice Regarding Certain Corporate Income Tax Matters on Indirect Transfer
of Properties by Non-Tax Resident Enterprises, or SAT Circular 7. SAT Circular 7 supersedes the rules with respect to the
Indirect Transfer under SAT Circular 698, but does not touch upon the other provisions of SAT Circular 698, which remain
in force. SAT Circular 7 has introduced a new tax regime that is significantly different from the previous one under SAT
Circular 698. SAT Circular 7 extends its tax jurisdiction to not only Indirect Transfers set forth under SAT Circular 698 but
also transactions involving transfer of other taxable assets through offshore transfer of a foreign intermediate holding
company. In addition, SAT Circular 7 provides clearer criteria than SAT Circular 698 for assessment of reasonable
commercial purposes and has introduced safe harbors for internal group restructurings and the purchase and sale of equity
through a public securities market. SAT Circular 7 also brings challenges to both foreign transferor and transferee (or other
person who is obligated to pay for the transfer) of taxable assets. Where a non-resident enterprise transfers taxable assets
indirectly by disposing of the equity interests of an overseas holding company, which is an Indirect Transfer, the non-
resident enterprise as either transferor or transferee, or the PRC entity that directly owns the taxable assets, may report such
Indirect Transfer to the relevant tax authority. Using a “substance over form” principle, the PRC tax authority may
disregard the existence of the overseas holding company if it lacks a reasonable commercial purpose and was established
for the purpose of reducing, avoiding or deferring PRC tax. As a result, gains derived from such Indirect Transfer may be
subject to PRC enterprise income tax, and the transferee or other person who is obligated to pay for the transfer is obligated
to withhold the applicable taxes, currently at a rate of 10% for the transfer of equity interests in a PRC resident enterprise.
Both the transferor and the transferee may be subject to penalties under PRC tax laws if the transferee fails to withhold the
taxes and the transferor fails to pay the taxes.
In October 2017, SAT issued an Announcement on Issues Relating to Withholding at Source of Income Tax of Non-
resident Enterprises, or SAT Circular 37. Effective December 2017, SAT Circular 37, among others, repealed the Circular
698 and amended certain provisions in SAT Circular 7. According to SAT Circular 37, where the non-resident enterprise
fails to declare the tax payable pursuant to Article 39 of the Enterprise Income Tax, the tax authority may order it to pay the
tax due within required time limits, and the non-resident enterprise shall declare and pay the tax payable within such time
limits specified by the tax authority. However, if the non-resident enterprise voluntarily declares and pays the tax payable
before the tax authority orders it to do so within required time limits, it shall be deemed that such enterprise has paid the
tax in time.
We face uncertainties as to the reporting and other implications of certain past and future transactions where PRC
taxable assets are involved, such as offshore restructuring, sale of the shares in our offshore subsidiaries and investments.
Our company may be subject to filing obligations or taxed if our company is transferor in such transactions, and may be
subject to withholding obligations if our company is transferee in such transactions, under SAT Circular 7 and SAT
Circular 37. For transfer of shares in our company by investors who are non-PRC resident enterprises, our PRC subsidiary
may be requested to assist in the filing under the SAT circulars. As a result, we may be required to expend valuable
resources to comply with the SAT circulars or to request the relevant transferors from whom we purchase taxable assets to
comply with these circulars, or to establish that our company should not be taxed under these circulars, which may have a
material adverse effect on our financial condition and results of operations.
49
Table of Contents
The audit report included in this annual report is prepared by an auditor who is not inspected by the Public Company
Accounting Oversight Board and, as such, you are deprived of the benefits of such inspection
Our independent registered public accounting firm that issues the audit reports included in this annual report, as an
auditor of companies that are traded publicly in the United States and a firm registered with the Public Company
Accounting Oversight Board, or the PCAOB, is required by the laws of the United States to undergo regular inspections by
the PCAOB to assess its compliance with the laws of the United States and professional standards. Because our auditors
are located in China, a jurisdiction where the PCAOB is currently unable to conduct inspections without the approval of the
Chinese authorities, our auditors are not currently inspected by the PCAOB. On December 7, 2018, the SEC and the
PCAOB issued a joint statement highlighting continued challenges faced by the U.S. regulators in their oversight of
financial statement audits of U.S.-listed companies with significant operations in China. As part of a continued regulatory
focus in the United States on access to audit and other information currently protected by national law, in particular the
PRC’s, in June 2019, a bipartisan group of lawmakers introduced bills in both houses of the U.S. Congress that would
require the SEC to maintain a list of issuers for which PCAOB is not able to inspect or investigate an auditor report issued
by a foreign public accounting firm. The Ensuring Quality Information and Transparency for Abroad-Based Listings on our
Exchanges (EQUITABLE) Act prescribes increased disclosure requirements for these issuers and, beginning in 2025, the
delisting from U.S. national securities exchanges such as the New York Stock Exchange of issuers included on the SEC’s
list for three consecutive years. Enactment of this legislation or other efforts to increase U.S. regulatory access to audit
information could cause investor uncertainty for affected issuers, including us, and the market price of our ADSs could be
adversely affected. It is unclear if this proposed legislation would be enacted. On April 21, 2020, the SEC and the PCAOB
issued another joint statement reiterating the greater risk that disclosures will be insufficient in many emerging markets,
including China, compared to those made by U.S. domestic companies. In discussing the specific issues related to the
greater risk, the statement again highlights the PCAOB's inability to inspect audit work paper and practices of accounting
firms in China, with respect to their audit work of U.S. reporting companies.
Inspections of other firms that the PCAOB has conducted outside of China have identified deficiencies in those firms’
audit procedures and quality control procedures, which may be addressed as part of the inspection process to improve
future audit quality. The lack of PCAOB inspections in China prevents the PCAOB from regularly evaluating our auditors’
audits and its quality control procedures. As a result, investors may be deprived of the benefits of PCAOB inspections.
The inability of the PCAOB to conduct inspections of auditors in China makes it more difficult to evaluate the
effectiveness of our auditors’ audit procedures or quality control procedures as compared to auditors outside of China that
are subject to PCAOB inspections. Investors may lose confidence in our reported financial information and procedures and
the quality of our financial statements.
Proceedings instituted by the SEC against Chinese affiliates of the “big four” accounting firms, including our
independent registered public accounting firm, could result in financial statements being determined to not be in
compliance with the requirements of the Exchange Act.
Starting in 2011, the Chinese affiliates of the “big four” accounting firms, including our independent registered public
accounting firm, were affected by a conflict between U.S. and Chinese law. Specifically, for certain U.S.-listed companies
operating and audited in mainland China, the SEC and the PCAOB sought to obtain from the Chinese firms access to their
audit work papers and related documents. The firms were, however, advised and directed that under Chinese law, they
could not respond directly to the U.S. regulators on those requests, and that requests by foreign regulators for access to
such papers in China had to be channeled through the CSRC.
50
Table of Contents
In late 2012, this impasse led the SEC to commence administrative proceedings under Rule 102(e) of its Rules of
Practice and also under the Sarbanes-Oxley Act of 2002 against the Chinese accounting firms, including our independent
registered public accounting firm. A first instance trial of the proceedings in July 2013 in the SEC’s internal administrative
court resulted in an adverse judgment against the firms. The administrative law judge proposed penalties on the firms
including a temporary suspension of their right to practice before the SEC, although that proposed penalty did not take
effect pending review by the Commissioners of the SEC. On February 6, 2015, before a review by the Commissioner had
taken place, the firms reached a settlement with the SEC. Under the settlement, the SEC accepts that future requests by the
SEC for the production of documents will normally be made to the CSRC. The firms will receive matching Section 106
requests, and are required to abide by a detailed set of procedures with respect to such requests, which in substance require
them to facilitate production via the CSRC. If they fail to meet specified criteria, the SEC retains authority to impose a
variety of additional remedial measures on the firms depending on the nature of the failure. Remedies for any future
noncompliance could include, as appropriate, an automatic six-month bar on a single firm’s performance of certain audit
work, commencement of a new proceeding against a firm, or in extreme cases the resumption of the current proceeding
against all four firms. If additional remedial measures are imposed on the Chinese affiliates of the “big four” accounting
firms, including our independent registered public accounting firm, in administrative proceedings brought by the SEC
alleging the firms’ failure to meet specific criteria set by the SEC with respect to requests for the production of documents,
we could be unable to timely file future financial statements in compliance with the requirements of the Exchange Act.
In the event that the SEC restarts the administrative proceedings, depending upon the final outcome, listed companies
in the United States with major PRC operations may find it difficult or impossible to retain auditors in respect of their
operations in the PRC, which could result in financial statements being determined to not be in compliance with the
requirements of the Exchange Act, including possible delisting. Moreover, any negative news about any such future
proceedings against these audit firms may cause investor uncertainty regarding China-based, U.S.-listed companies and the
market price of our ADSs may be adversely affected.
If our independent registered public accounting firm was denied, even temporarily, the ability to practice before the
SEC and we were unable to timely find another registered public accounting firm to audit and issue an opinion on our
financial statements, our financial statements could be determined not to be in compliance with the requirements of the
Exchange Act. Such a determination could ultimately lead to the delisting of our ADSs from the Nasdaq Global Select
Market or deregistration from the SEC, or both, which would substantially reduce or effectively terminate the trading of
our ADSs in the United States.
Risks Related to Our ADSs
The trading price of our ADSs may be volatile, which could result in substantial losses to investors.
Since our ADSs became listed on the Nasdaq Global Select Market on July 26, 2018, the trading price of our ADSs
has ranged from US$16.53 to US$53.67 per ADS. The trading price of our ADSs may be volatile and could fluctuate
widely due to factors beyond our control. This may happen because of broad market and industry factors, including the
performance and fluctuation of the market prices of other companies with business operations located mainly in China that
have listed their securities in the United States. The trading performances of other Chinese companies’ securities, including
internet and e-commerce companies, may affect the attitudes of investors toward Chinese companies listed in the United
States, which consequently may impact the trading performance of our ADSs, regardless of our actual operating
performance. In addition, any negative news or perceptions about inadequate corporate governance practices or fraudulent
accounting, corporate structure or matters of other Chinese companies may also negatively affect the attitudes of investors
towards Chinese companies in general, including us, regardless of our conduct. In addition, securities markets may from
time to time experience significant price and volume fluctuations that are not related to our operating performance, such as
the recent large decline in share prices in the United States, which may have a material and adverse effect on the trading
price of our ADSs. In addition to market and industry factors, the price and trading volume for our ADSs may be highly
volatile for factors specific to our own operations, including the following:
● variations in our revenues, earnings and cash flow;
51
Table of Contents
● announcements of new investments, acquisitions, strategic partnerships or joint ventures by us or our competitors;
● announcements of new offerings, solutions and expansions by us or our competitors;
● changes in financial estimates by securities analysts;
● detrimental adverse publicity about us, our brand, our services or our industry;
● additions or departures of key personnel;
● release of lock-up or other transfer restrictions on our outstanding equity securities or sales of additional equity
securities; and
● potential litigation or regulatory investigations.
Any of these factors may result in large and sudden changes in the volume and price at which our ADSs will trade.
In the past, shareholders of public companies have often brought securities class action suits against those companies
following periods of instability in the market price of their securities, such as the putative class action lawsuits we
disclosed in the “Item 8. Financial Information—A. Consolidated Statements and Other Financial Information—Legal
Proceedings” section. These putative class action suits could divert a significant amount of our management’s attention and
other resources from our business and operations and require us to incur significant expenses to defend the suits, which
could harm our results of operations. Moreover, these class action suits, whether or not successful, could harm our
reputation and restrict our ability to raise capital in the future. In addition, if a claim is successfully made against us, we
may be required to pay significant damages or indemnification claims, which could have a material adverse effect on our
financial condition and results of operations.
Our dual-class share structure with different voting rights will limit your ability to influence corporate matters and
could discourage others from pursuing any change of control transactions that holders of our Class A ordinary shares
and ADSs may view as beneficial.
We have a dual-class share structure such that our ordinary shares consist of Class A ordinary shares and Class B
ordinary shares. In respect of matters requiring the votes of shareholders, holders of Class A ordinary shares will be
entitled to one vote per share, while holders of Class B ordinary shares will be entitled to ten votes per share based on our
dual-class share structure. Each Class B ordinary share is convertible into one Class A ordinary share at any time at the
option of the holder thereof, while Class A ordinary shares are not convertible into Class B ordinary shares under any
circumstances. Upon any sale, transfer, assignment or disposition of any Class B ordinary shares by a holder thereof to any
person other than Mr. Zheng Huang or any entity which is not ultimately controlled by Mr. Zheng Huang, such Class B
ordinary shares shall be automatically and immediately converted into the same number of Class A ordinary shares.
As of the date of this annual report, our founder, chairman of the board of directors and chief executive officer, Mr.
Zheng Huang, beneficially owns all of our issued Class B ordinary shares. As of March 31, 2020, these Class B ordinary
shares constituted approximately 44.6% of our total issued and outstanding share capital and 88.9% of the aggregate voting
power of our total issued and outstanding share capital due to the disparate voting powers associated with our dual-class
share structure. See “Item 6. Directors, Senior Management and Employees—E. Share Ownership.” As a result of the dual-
class share structure and the concentration of ownership, holders of Class B ordinary shares have considerable influence
over matters such as decisions regarding mergers, consolidations and the sale of all or substantially all of our assets,
election of directors and other significant corporate actions. Such holders may take actions that are not in the best interest
of us or our other shareholders. This concentration of ownership may discourage, delay or prevent a change in control of
our company, which could have the effect of depriving our other shareholders of the opportunity to receive a premium for
their shares as part of a sale of our company and may reduce the price of our ADSs. This concentrated control will limit
your ability to influence corporate matters and could discourage others from pursuing any potential merger, takeover or
other change of control transactions that holders of Class A ordinary shares and ADSs may view as beneficial.
52
Table of Contents
The dual-class share structure of our ordinary shares may adversely affect the trading market for our ADSs.
S&P Dow Jones and FTSE Russell have recently announced changes to their eligibility criteria for inclusion of shares
of public companies on certain indices, including the S&P 500, to exclude companies with multiple classes of shares and
companies whose public shareholders hold no more than 5% of total voting power from being added to such indices. In
addition, several shareholder advisory firms have announced their opposition to the use of multiple class structures. As a
result, the dual class structure of our ordinary shares may prevent the inclusion of our ADSs representing Class A ordinary
shares in such indices and may cause shareholder advisory firms to publish negative commentary about our corporate
governance practices or otherwise seek to cause us to change our capital structure. Any such exclusion from indices could
result in a less active trading market for our ADSs. Any actions or publications by shareholder advisory firms critical of
our corporate governance practices or capital structure could also adversely affect the value of our ADSs.
Conversion of the convertible senior notes offered may dilute the ownership interest of existing shareholders.
The conversion of some or all of our convertible senior notes will dilute the ownership interests of existing
shareholders and existing holders of our ADSs. Any sales in the public market of the ADSs issuable upon such conversion
may increase the opportunities to create short positions with respect to the ADSs, which could adversely affect prevailing
market prices of our ADSs. In addition, the existence of the convertible senior notes may encourage short selling by market
participants because the conversion of the convertible senior notes could depress the price of our ADSs. The price of our
ADSs could be affected by possible sales of our ADSs by investors who view the convertible senior notes as a more
attractive means of equity participation in us and by hedging or arbitrage trading activity, which we expect to occur
involving our ADSs.
If securities or industry analysts do not publish research or reports about our business, or if they adversely change their
recommendations regarding our ADSs, the market price for our ADSs and trading volume could decline.
The trading market for our ADSs will be influenced by research or reports that industry or securities analysts publish
about our business. If one or more analysts who cover us downgrade our ADSs, the market price for our ADSs would
likely decline. If one or more of these analysts cease to cover us or fail to regularly publish reports on us, we could lose
visibility in the financial markets, which in turn could cause the market price or trading volume for our ADSs to decline.
Techniques employed by short sellers may drive down the market price of the ADSs.
Short selling is the practice of selling securities that a seller does not own but rather has borrowed from a third party
with the intention of buying identical securities back at a later date to return to the lender. Short sellers hope to profit from
a decline in the value of the securities between the sale of the borrowed securities and the purchase of the replacement
shares, as short sellers expect to pay less in that purchase than they received in the sale. As it is in short sellers’ interest for
the price of the security to decline, many short sellers publish, or arrange for the publication of, negative opinions and
allegations regarding the relevant issuer and its business prospects in order to create negative market momentum and
generate profits for themselves after selling a security short. These short attacks have, in the past, led to selling of shares in
the market.
We have been the subject of short selling, and it is not clear what long-term effect such negative publicity could have
on us. We may also be subject to short seller attacks from time to time in the future. If we were to become the subject of
any unfavorable allegations, whether such allegations are proven to be true or untrue, we may have to expend a significant
amount of resources to investigate such allegations and/or defend ourselves. While we would strongly defend against any
such short seller attacks, we may be constrained in the manner in which we can proceed against the relevant short sellers by
principles of freedom of speech, applicable state law or issues of commercial confidentiality. Such a situation could be
costly and time-consuming, and could divert management’s attention from the day-to-day operations of our company. Even
if such allegations are ultimately proven to be groundless, allegations against us could severely impact the market price of
our ADSs and our business operations.
53
Table of Contents
The sale or availability for sale of substantial amounts of our ADSs could adversely affect their market price.
Sales of substantial amounts of our ADSs in the public market or the perception that these sales could occur, could
adversely affect the market price of our ADSs and could materially impair our ability to raise capital through equity
offerings in the future. We cannot predict what effect, if any, market sales of securities held by our significant shareholders
or any other shareholder or the availability of these securities for future sale will have on the market price of our ADSs.
Because we do not expect to pay dividends in the foreseeable future, you must rely on a price appreciation of our ADSs
for return on your investment.
We currently intend to retain most, if not all, of our available funds and any future earnings to fund the development
and growth of our business. As a result, we do not expect to pay any cash dividends in the foreseeable future. Therefore,
you should not rely on an investment in our ADSs as a source for any future dividend income.
Our board of directors has complete discretion as to whether to distribute dividends, subject to certain requirements of
Cayman Islands law. In addition, our shareholders may by ordinary resolution declare a dividend, but no dividend may
exceed the amount recommended by our directors. Under Cayman Islands law, a Cayman Islands company may pay a
dividend out of either profit or share premium account, provided that in no circumstances may a dividend be paid if this
would result in the company being unable to pay its debts as they fall due in the ordinary course of business. Even if our
board of directors decides to declare and pay dividends, the timing, amount and form of future dividends, if any, will
depend on our future results of operations and cash flow, our capital requirements and surplus, the amount of distributions,
if any, received by us from our subsidiaries, our financial condition, contractual restrictions and other factors deemed
relevant by our board of directors. Accordingly, the return on your investment in our ADSs will likely depend entirely upon
any future price appreciation of our ADSs. There is no guarantee that our ADSs will appreciate in value or even maintain
the price at which you purchased the ADSs. You may not realize a return on your investment in our ADSs and you may
even lose your entire investment in our ADSs.
Our memorandum and articles of association contain anti-takeover provisions that could have a material adverse effect
on the rights of holders of our ordinary shares and ADSs.
Our currently effective memorandum and articles of association contain provisions to limit the ability of others to
acquire control of our company or cause us to engage in change-of-control transactions. These provisions could have the
effect of depriving our shareholders of an opportunity to sell their shares at a premium over prevailing market prices by
discouraging third parties from seeking to obtain control of our company in a tender offer or similar transaction. Our dual-
class voting structure gives disproportionate voting power to holders of the Class B ordinary shares. Our board of directors
has the authority, without further action by our shareholders, to issue preferred shares in one or more series and to fix their
designations, powers, preferences, privileges, and relative participating, optional or special rights and the qualifications,
limitations or restrictions, including dividend rights, conversion rights, voting rights, terms of redemption and liquidation
preferences, any or all of which may be greater than the rights associated with our ordinary shares, in the form of ADS or
otherwise. Preferred shares could be issued quickly with terms calculated to delay or prevent a change in control of our
company or make removal of management more difficult. If our board of directors decides to issue preferred shares, the
price of our ADSs may fall and the voting and other rights of the holders of our ordinary shares and ADSs may be
materially and adversely affected.
54
Table of Contents
You may face difficulties in protecting your interests, and your ability to protect your rights through U.S. courts may be
limited, because we are incorporated under Cayman Islands law.
We are an exempted company incorporated under the laws of the Cayman Islands. Our corporate affairs are governed
by our memorandum and articles of association, the Companies Law (2020 Revision) of the Cayman Islands and the
common law of the Cayman Islands. The rights of shareholders to take action against our directors, actions by our minority
shareholders and the fiduciary duties of our directors to us under Cayman Islands law are to a large extent governed by the
common law of the Cayman Islands. The common law of the Cayman Islands is derived in part from comparatively limited
judicial precedent in the Cayman Islands as well as from the common law of England, the decisions of whose courts are of
persuasive authority, but are not binding, on a court in the Cayman Islands. The rights of our shareholders and the fiduciary
duties of our directors under Cayman Islands law are not as clearly established as they would be under statutes or judicial
precedent in some jurisdictions in the United States. In particular, the Cayman Islands has a less developed body of
securities laws than the United States. Some U.S. states, such as Delaware, have more fully developed and judicially
interpreted bodies of corporate law than the Cayman Islands. In addition, Cayman Islands companies may not have
standing to initiate a shareholder derivative action in a federal court of the United States.
Shareholders of Cayman Islands exempted companies like us have no general rights under Cayman Islands law to
inspect corporate records (except the memorandum and articles of association) or to obtain copies of lists of shareholders
of these companies. Our directors have discretion under our currently effective articles of association to determine whether
or not, and under what conditions, our corporate records may be inspected by our shareholders, but are not obliged to make
them available to our shareholders. This may make it more difficult for you to obtain the information needed to establish
any facts necessary for a shareholder motion or to solicit proxies from other shareholders in connection with a proxy
contest.
As a result of all of the above, our public shareholders may have more difficulty in protecting their interests in the face
of actions taken by management, members of the board of directors or controlling shareholders than they would as public
shareholders of a company incorporated in the United States.
ADSs holders may not be entitled to a jury trial with respect to claims arising under the deposit agreements, which could
result in less favorable outcomes to the plaintiff(s) in any such action.
The deposit agreements governing the ADSs representing our ordinary shares provide that, subject to the depositary’s
right to require a claim to be submitted to arbitration, the federal or state courts in the City of New York have exclusive
jurisdiction to hear and determine claims arising under the deposit agreements and in that regard, to the fullest extent
permitted by law, ADS holders waive the right to a jury trial of any claim they may have against us or the depositary
arising out of or relating to our shares, the ADSs or the deposit agreements, including any claim under the U.S. federal
securities laws.
If we or the depositary opposed a jury trial demand based on the waiver, the court would determine whether the waiver
was enforceable based on the facts and circumstances of that case in accordance with the applicable U.S. state and federal
law. To our knowledge, the enforceability of a contractual pre-dispute jury trial waiver in connection with claims arising
under the U.S. federal securities laws has not been finally adjudicated by the United States Supreme Court. However, based
on past court decisions, we believe that a contractual pre-dispute jury trial waiver provision is generally enforceable,
including under the laws of the State of New York, which govern the deposit agreements. In determining whether to
enforce a contractual pre-dispute jury trial waiver provision, courts will generally consider whether a party knowingly,
intelligently and voluntarily waived the right to a jury trial. We believe that this is the case with respect to the deposit
agreements and the ADSs. It is advisable that you consult legal counsel regarding the jury waiver provision under the
deposit agreements before investing in the ADSs.
55
Table of Contents
If you or any other holders or beneficial owners of ADSs bring a claim against us or the depositary in connection with
matters arising under the deposit agreements or the ADSs, including claims under U.S. federal securities laws, you or such
other holder or beneficial owner may not be entitled to a jury trial with respect to such claims, which may have the effect of
limiting and discouraging lawsuits against us and/or the depositary. If a lawsuit is brought against us and/or the depositary
under the deposit agreements, it may be heard only by a judge or justice of the applicable trial court, which would be
conducted according to different civil procedures and may result in different outcomes than a trial by jury would have had,
including results that could be less favorable to the plaintiff(s) in any such action.
Nevertheless, if this jury trial waiver provision is not enforced, to the extent a court action proceeds, it would proceed
under the terms of the deposit agreements with a jury trial. No condition, stipulation or provision of the deposit agreements
or ADSs serves as a waiver by any holder or beneficial owner of ADSs or by us or the depositary of compliance with the
U.S. federal securities laws and the rules and regulations promulgated thereunder.
Certain judgments obtained against us by our shareholders may not be enforceable.
We are a Cayman Islands exempted company and substantially all of our assets are located outside of the United
States. Substantially all of our current operations are conducted in China. In addition, most of our current directors and
officers are nationals and residents of countries other than the United States. Substantially all of the assets of these persons
are located outside the United States. As a result, it may be difficult or impossible for you to bring an action against us or
against these individuals in the United States in the event that you believe that your rights have been infringed under the
U.S. federal securities laws or otherwise. Even if you are successful in bringing an action of this kind, the laws of the
Cayman Islands and of China may render you unable to enforce a judgment against our assets or the assets of our directors
and officers.
56
Table of Contents
The voting rights of holders of ADSs are limited by the terms of the deposit agreements, and you may not be able to
exercise your right to vote your Class A ordinary shares.
Holders of ADSs do not have the same rights as our registered shareholders. As a holder of our ADSs, you will not
have any direct right to attend general meetings of our shareholders or to cast any votes at such meetings. As an ADS
holder, you will only be able to exercise the voting rights carried by the underlying Class A ordinary shares represented by
your ADSs indirectly by giving voting instructions to the depositary in accordance with the provisions of the relevant
deposit agreement. Under the deposit agreements, you may vote only by giving voting instructions to the depositary. Upon
receipt of your voting instructions, the depositary will try, as far as is practicable, to vote the underlying Class A ordinary
shares represented by your ADSs in accordance with your instructions. If we ask for your instructions, then upon receipt of
your voting instructions, the depositary will try to vote the underlying Class A ordinary shares represented by your ADSs
in accordance with these instructions. If we do not instruct the depositary to ask for your instructions, the depositary may
still vote in accordance with instructions you give, but it is not required to do so. You will not be able to directly exercise
your right to vote with respect to the underlying Class A ordinary shares represented by your ADSs unless you withdraw
such shares, and become the registered holder of such shares prior to the record date for the general meeting. When a
general meeting is convened, you may not receive sufficient advance notice of the meeting to withdraw the underlying
Class A ordinary shares represented by your ADSs and become the registered holder of such shares to allow you to attend
the general meeting and to vote directly with respect to any specific matter or resolution to be considered and voted upon at
the general meeting. In addition, under our currently effective memorandum and articles of association, for the purposes of
determining those shareholders who are entitled to attend and vote at any general meeting, our directors may close our
register of members and/or fix in advance a record date for such meeting, and such closure of our register of members or
the setting of such a record date may prevent you from withdrawing the underlying Class A ordinary shares represented by
your ADSs and becoming the registered holder of such shares prior to the record date, so that you would not be able to
attend the general meeting or to vote directly. If we ask for your instructions, the depositary will notify you of the
upcoming vote and will arrange to deliver our voting materials to you. We have agreed to give the depositary notice of
shareholder meetings sufficiently in advance of such meetings. Nevertheless, we cannot assure you that you will receive
the voting materials in time to ensure that you can instruct the depositary to vote the underlying Class A ordinary shares
represented by your ADSs. In addition, the depositary and its agents are not responsible for failing to carry out voting
instructions or for their manner of carrying out your voting instructions. The deposit agreements provide that if the
depositary does not timely receive voting instructions from the ADS holders and if voting is by poll, then such holder shall
be deemed, and the depositary shall deem such holder, to have instructed the depositary to give a discretionary proxy to a
person designated by us to vote the underlying Class A ordinary shares represented by the relevant ADSs, with certain
limited exceptions. This means that you may not be able to exercise your right to direct how the underlying Class A
ordinary shares represented by your ADSs are voted and you may have no legal remedy if the underlying Class A ordinary
shares represented your ADSs are not voted as you requested.
You may experience dilution of your holdings due to the inability to participate in future rights offerings.
We may, from time to time, distribute rights to our shareholders, including rights to acquire securities. Under the
deposit agreements, the depositary will not distribute rights to holders of ADSs unless the distribution and sale of rights
and the securities to which these rights relate are either exempt from registration under the Securities Act with respect to all
holders of ADSs, or are registered under the provisions of the Securities Act. The depositary may, but is not required to,
attempt to sell these undistributed rights to third parties, and may allow the rights to lapse. We may be unable to establish
an exemption from registration under the Securities Act, and we are under no obligation to file a registration statement with
respect to these rights or underlying securities or to endeavor to have a registration statement declared effective.
Accordingly, holders of ADSs may be unable to participate in our rights offerings and may experience dilution of their
holdings as a result.
57
Table of Contents
You may be subject to limitations on the transfer of your ADSs.
Your ADSs are transferable on the books of the depositary. However, the depositary may close its books at any time or
from time to time when it deems it expedient in connection with the performance of its duties. The depositary may close its
books from time to time for a number of reasons, including in connection with corporate events such as a rights offering,
during which time the depositary needs to maintain an exact number of ADS holders on its books for a specified period.
The depositary may also close its books in emergencies, and on weekends and public holidays. The depositary may refuse
to deliver, transfer or register transfers of our ADSs generally when our share register or the books of the depositary are
closed, or at any time if we or the depositary thinks it is advisable to do so because of any requirement of law or of any
government or governmental body, or under any provision of the relevant deposit agreement, or for any other reason.
Your investment in our ADSs may be impacted if we are encouraged to issue CDRs in the future.
Currently the Chinese central government is proposing new rules that would allow Chinese technology companies
listed outside China to list on the mainland stock market through the creation of Chinese Depositary Receipts, or CDRs.
Once the CDR mechanism is in place, we might consider and be encouraged by the evolving Chinese governmental
policies to issue CDRs and allow investors to trade our CDRs on Chinese stock exchanges. However, there are
uncertainties as to whether a pursuit of CDRs in China would bring positive or negative impact on your investment in our
ADSs.
We may incur increased costs as a result of being a public company, particularly after we have ceased to qualify as an
“emerging growth company.”
As a public company, we incur significant accounting, legal and other expenses. The Sarbanes-Oxley Act, as well as
rules subsequently implemented by the SEC and Nasdaq, have detailed requirements concerning corporate governance
practices of public companies, including Section 404 of the Sarbanes-Oxley Act relating to internal controls over financial
reporting. We expect these rules and regulations applicable to public companies to increase our accounting, legal and
financial compliance costs and to make certain corporate activities more time-consuming and costly. As we are no longer
an “emerging growth company” since December 31, 2018, we expect to incur significant expenses and devote substantial
management effort toward ensuring compliance with the requirements of Section 404 of the Sarbanes-Oxley Act and the
other rules and regulations of the SEC. For example, as a result of becoming a public company, we need to adopt policies
regarding internal controls and disclosure controls and procedures. In addition, we incur additional costs associated with
our public company reporting requirements. We are currently evaluating and monitoring developments with respect to
these rules and regulations, and we cannot predict or estimate with any degree of certainty the amount of additional costs
we may incur or the timing of such costs.
As an exempted company incorporated in the Cayman Islands, we are permitted to adopt certain home country practices
in relation to corporate governance matters that differ significantly from the Nasdaq corporate governance listing
standards; these practices may afford less protection to shareholders than they would enjoy if we complied fully with the
Nasdaq corporate governance listing standards.
As a Cayman Islands exempted company listed on the Nasdaq Global Select Market, we are subject to the Nasdaq
Stock Market corporate governance listing standards. However, Nasdaq Stock Market rules permit a foreign private issuer
like us to follow the corporate governance practices of its home country. Certain corporate governance practices in the
Cayman Islands, which is our home country, may differ significantly from the Nasdaq Stock Market corporate governance
listing standards. We rely on home country practice exemption with respect to the requirement for annual shareholders
meetings and did not hold an annual shareholders meeting in 2019. We may also opt to rely on additional home country
practice exemptions in the future. As a result, our shareholders may be afforded less protection than they would otherwise
enjoy under the Nasdaq Stock Market corporate governance listing standards applicable to U.S. domestic issuers.
58
Table of Contents
There can be no assurance that we will not be classified as a passive foreign investment company, or PFIC, for U.S.
federal income tax purposes for any taxable year, which could subject U.S. investors in our ADSs or Class A ordinary
shares to significant adverse U.S. income tax consequences.
We will be a “passive foreign investment company,” or “PFIC,” if, in any particular taxable year, either (a) 75% or
more of our gross income for such year consists of certain types of “passive” income or (b) 50% or more of the value of
our assets (generally determined on the basis of a quarterly average) during such year produce or are held for the
production of passive income (the “asset test”). Although the law in this regard is unclear, we intend to treat our VIE
(including its subsidiaries) as being owned by us for U.S. federal income tax purposes, not only because we exercise
effective control over the operation of such entity but also because we are entitled to substantially all of its economic
benefits, and, as a result, we consolidate its results of operations in our consolidated financial statements. Assuming that we
are the owner of our VIE (including its subsidiaries) for U.S. federal income tax purposes, and based upon our current and
expected income and assets, including goodwill, and the current and projected value of our ADSs, we do not believe that
we were a PFIC for the taxable year ended December 31, 2019 and we do not expect to be a PFIC in the current taxable
year or for the foreseeable future.
While we do not believe that we were a PFIC for the taxable year ended December 31, 2019 and we do not expect to
become a PFIC, because the value of our assets for purposes of the asset test may be determined by reference to the market
price of our ADSs, fluctuations in the market price of our ADSs may cause us to become a PFIC for the current or
subsequent taxable years. The determination of whether we will be or become a PFIC will also depend, in part, on the
composition of our income and assets, which may be affected by how, and how quickly, we use our liquid assets. If we
determine not to deploy significant amounts of cash for active purposes or if it were determined that we do not own the
stock of our VIE for U.S. federal income tax purposes, our risk of being a PFIC may substantially increase. Because PFIC
status is a factual determination made annually after the close of each taxable year, there can be no assurance that we will
not be a PFIC for the current taxable year or any future taxable year.
If we are a PFIC in any taxable year, a U.S. holder (as defined in “Item 10. Additional Information—E. Taxation
—U.S. Federal Income Tax Considerations”) may incur significantly increased U.S. income tax on gain recognized on
the sale or other disposition of the ADSs or Class A ordinary shares and on the receipt of distributions on the ADSs or
Class A ordinary shares to the extent such gain or distribution is treated as an “excess distribution” under the U.S.
federal income tax rules and such holder may be subject to burdensome reporting requirements. Further, if we are a
PFIC for any year during which a U.S. holder holds our ADSs or Class A ordinary shares, we generally will continue
to be treated as a PFIC for all succeeding years during which such U.S. holder holds our ADSs or Class A ordinary
shares. For more information see “Item 10. Additional Information—E. Taxation—U.S. Federal Income Tax
Considerations—Passive Foreign Investment Company Considerations.”
Item 4. Information on the Company
A. History and Development of the Company
We commenced our commercial operations in 2015 through Hangzhou Aimi Network Technology Co., Ltd., or
Hangzhou Aimi, and Shanghai Xunmeng Information Technology Co., Ltd., or Shanghai Xunmeng, in parallel. In
June 2016, to streamline the operations of these two companies, Hangzhou Aimi obtained 100% equity interest in Shanghai
Xunmeng, and Shanghai Xunmeng became a wholly-owned subsidiary of Hangzhou Aimi.
We incorporated Walnut Street Group Holding Limited under the laws of the Cayman Islands as our offshore holding
company in April 2015 to facilitate offshore financing. In the same month, we established HongKong Walnut Street
Limited, or Walnut HK, our wholly-owned Hong Kong subsidiary, and Walnut HK established a wholly-owned PRC
subsidiary, Hangzhou Weimi Network Technology Co., Ltd., or Hangzhou Weimi. Walnut HK established two additional
wholly-owned PRC subsidiaries, Walnut Street (Shanghai) Information Technology Co., Ltd. (formerly known as Shanghai
Pinduoduo Network Technology Co., Ltd.) and Shenzhen Qianhai Xinzhijiang Information Technology Co., Ltd., in
January 2018 and April 2018, respectively, which, together with Hangzhou Weimi, are referred to as our WFOEs in this
annual report. In July 2018, we renamed our company as Pinduoduo Inc.
59
Table of Contents
Due to restrictions imposed by PRC laws and regulations on foreign ownership of companies that engage in internet
and other related business, Hangzhou Weimi later entered into a series of contractual arrangements with Hangzhou Aimi,
which we refer to as our VIE in this annual report, and its shareholders. We depend on these contractual arrangements with
our VIE, in which we have no ownership interests, and its shareholders to conduct most aspects of our operation. We have
relied and expect to continue to rely on these contractual arrangements to conduct our business in China. The shareholders
of our VIE may have potential conflicts of interest with us. See “Item 3. Key Information—D. Risk Factors—Risks
Related to Our Corporate Structure—The shareholders of our VIE may have potential conflicts of interest with us, which
may materially and adversely affect our business and financial condition.”
Under PRC laws and regulations, our PRC subsidiaries may pay cash dividends to us out of their respective
accumulated profits. However, the ability of our PRC subsidiaries to make such distribution to us is subject to various PRC
laws and regulations, including the requirement to fund certain statutory funds, as well as potential restriction on currency
exchange and capital controls imposed by the PRC government. For more details, see “Item 3. Key Information—D. Risk
Factors—Risks Related to Doing Business in China—We may rely on dividends and other distributions on equity paid by
our PRC subsidiaries to fund any cash and financing requirements we may have, and any limitation on the ability of our
PRC subsidiaries to make payments to us could have a material and adverse effect on our ability to conduct our business”
and “Item 4. Information on the Company—B. Business Overview—Regulation—Regulations Relating to Dividend
Distributions.”
As a result of our direct ownership in our WFOEs and the variable interest entity contractual arrangements, we are
regarded as the primary beneficiary of our VIE. We treat it and its subsidiaries as our consolidated affiliated entities under
U.S. GAAP, and have consolidated the financial results of these entities in our consolidated financial statements in
accordance with U.S. GAAP.
On July 26, 2018, our ADSs commenced trading on the Nasdaq Global Select Market under the symbol “PDD.” We
raised approximately US$1.7 billion in net proceeds from the issuance of new shares from the initial public offering after
deducting underwriting commissions and the offering expenses payable by us. In February 2019, we completed a follow-on
public offering, and raised approximately US$1.2 billion in net proceeds after deducting underwriting discounts and
offering expenses payable by us. In September 2019, we completed an offering of US$1.0 billion in aggregate principal
amount of convertible senior notes due 2024, which included the exercise in full by the initial purchasers of their option to
purchase up to an additional US$125 million in aggregate principal amount of the notes. In April 2020, we raised US$1.1
billion in net proceeds from the private placement of our Class A ordinary shares to certain long-term investors.
Our principal executive offices are located at 28/F, No. 533 Loushanguan Road, Changning District, Shanghai,
People’s Republic of China. Our telephone number at this address is +86 21-52661300. Our registered office in the
Cayman Islands is located at the offices of Vistra (Cayman) Limited, P.O. Box 31119 Grand Pavilion, Hibiscus Way,
802 West Bay Road, Grand Cayman, KY1-1205, Cayman Islands. Our agent for service of process in the United States is
Puglisi & Associates, located at 850 Library Avenue, Suite 204, Newark, Delaware 19711.
B. Business Overview
We are an innovative and fast-growing “new e-commerce” platform that provides buyers with value-for-money
merchandise and fun and interactive shopping experiences. Our Pinduoduo mobile platform offers a comprehensive
selection of attractively priced merchandise, featuring a dynamic social shopping experience that leverages social networks
as an effective and efficient tool for buyer acquisition and engagement. As a result of our innovative business model, we
have been able to quickly expand our buyer base and establish our brand recognition and market position. We are one of
the leading Chinese e-commerce players in terms of GMV and the number of total orders, and the second largest platform
in terms of buyer base. Our GMV in 2017, 2018 and 2019 was RMB141.2 billion, RMB471.6 billion and RMB1,006.6
billion (US$144.6 billion), respectively. In 2017, 2018 and 2019, the number of total orders placed on our Pinduoduo
mobile platform reached 4.3 billion, 11.1 billion and 19.7 billion, respectively.
60
Table of Contents
We pioneered an innovative “team purchase” model on our platform. Buyers can access our platform and make team
purchases by either visiting our platform directly or through popular social networks, such as Weixin and QQ. They are
encouraged to share product information on such social networks, and invite their friends, family and social contacts to
form a shopping team to enjoy the more attractive prices available under the “team purchase” option. As a result, buyers on
our platform actively introduce us and the products available on our platform to their friends, family and social contacts,
some of whom may be new to our platform. New buyers in turn further refer our platform to their broader family and social
networks, generating low-cost, effective and organic traffic and frequent interactions and leading to the exponential growth
of our buyer base. In 2017, 2018 and 2019, the number of active buyers on our platform reached 244.8 million, 418.5
million and 585.2 million, respectively.
Our large and highly active buyer base has helped attract merchants to our platform, and the scale of our sales volume
has encouraged merchants to offer even more competitive prices and customized products and services to buyers, thus
forming a virtuous cycle. In 2019, we had 5.1 million active merchants on our platform, offering a broad range of product
categories.
Our “team purchase” model has transformed online shopping into a dynamic social experience. We have consciously
built our platform to resemble a “virtual bazaar” where buyers browse and explore a full spectrum of products while
interacting with one another. In contrast to the conventional search-based “inventory index” model, our platform brings out
the fun and excitement of discovery and shopping. This embedded social element has fostered a highly engaged user base.
In May 2018, to further provide a fun experience for users of our platform, we launched Duo Duo Orchard, an engaging in-
app game that allows users to plant and grow a virtual tree on our platform to win prizes in the form of real fruits.
Not only is the “team purchase” model an efficient tool for user engagement and expansion, it also helps us understand
our users better so that we could help improve the supply chain efficiency of the retail market. We can channel user
preferences to merchants so that they can adjust their production and sales plans accordingly. As a result, upstream
suppliers can be better informed of consumer demand and transformed by the “C2M” (Consumer-to-Manufacturer) model.
We leveraged our platform and developed the “Internet + Agriculture” initiative to facilitate direct sales between
small-scale farmers and consumers. By making recommendations to consumers based on our understanding of their
preferences in product variety and price through our distributed AI framework, we are able to aggregate demand, thereby
generating large volumes of orders for our farmer merchants. The large demand helps them to be less dependent on
distributors and makes it possible for them to sell directly to consumers, thereby improving the overall supply chain
efficiency and reducing cost. Through such an initiative, consumers end up getting fresher and safer products for a lower
price, while farmers earn more, which can be reinvested in their farming equipment and practices to further improve
production quantity and quality.
We have experienced substantial growth since our inception in 2015. We currently generate revenues primarily from
online marketplace services. Our revenues grew from RMB1,744.1 million in 2017 to RMB13,120.0 million in 2018, and
further to RMB30,141.9 million (US$4,329.6 million) in 2019. We incurred net loss of RMB525.1 million, RMB10,217.1
million and RMB6,967.6 million (US$1,000.8 million) in 2017, 2018 and 2019, respectively.
Our “New E-Commerce” Platform
We are an innovative and fast-growing “new e-commerce” platform. We are one of the leading Chinese e-commerce
players in terms of GMV and the number of total orders , and the second largest platform in terms of buyer base. We
conduct our business primarily through our Pinduoduo mobile platform. Buyers come to our platform to browse, explore
and purchase attractive value-for-money merchandise from third-party merchants. The scale of our sales volume and our
ability to enable them to achieve massive sales volume have attracted merchants to our platform, and encouraged them to
offer more competitive prices and customized products and services to buyers. Since our inception, the number of our
active buyers and active merchants grew exponentially, and reached approximately 585.2 million and 5.1 million,
respectively, in 2019. In 2017, 2018 and 2019, the number of total orders placed on our Pinduoduo mobile platform
reached 4.3 billion, 11.1 billion and 19.7 billion, respectively.
61
Table of Contents
Our platform offers “individual purchase” and “team purchase” options. A buyer who opts for the individual purchase
option places the order or transacts with a merchant on an individual basis to get speedier order confirmation whereas team
purchase buyers combine their purchase orders for a particular merchandise with other buyers to enjoy a lower price.
Merchants on our platform typically require at least two buyers to team up in order to take advantage of the “team
purchase” option. Substantially all of the transactions in 2017, 2018 and 2019 were team purchases.
With the seamless integration of our platform with major social networks in China, such as Weixin and QQ, our buyers
can quickly and smoothly find other potential buyers to form a team either directly on our app or through sending a team
purchase invitation, or sharing product information or their Pinduoduo shopping experiences with their friends, family and
social contacts. The act of sharing is then rewarded by the more attractive purchase price offered through the team purchase
option. The embedded social element has also helped foster a highly engaged user base.
We cooperate with leading third-party online payment service providers in China, including Weixin Pay, QQ Wallet,
Alipay and Apple Pay, and enable our buyers to make payments for their purchases easily and efficiently. We do not
depend on any particular provider for such services.
Upon an individual purchase order or once a team purchase order is formed on our platform and confirmed to the
applicable merchant, the merchant will handle the fulfillment, select the most suitable third-party logistics service provider
and arrange for the delivery of products to the buyers. In order to provide our merchants a more efficient integration with
third-party logistics service providers, and to provide our buyers greater visibility on the delivery statuses of their purchase
orders, we launched our proprietary e-waybill system in the first quarter of 2019. Our e-waybill system is a paperless,
digital platform that automates the bulk printing of shipment labels, track and record orders fulfillment history and
shipment status, and generate real-time shipment tracking and alerts for our buyers. Most of China’s major third-party
logistics service providers have integrated their backend systems with our e-waybill system in 2019. Most of our merchants
now use our e-waybill system to initiate shipment orders with the third-party logistics service providers they select.
Our Team Purchase Model
We pioneered an innovative “team purchase” model on our platform. For each product on our platform, a buyer can
choose between buying the product individually or initiating or joining a team purchase. If the buyer chooses to initiate or
join a team purchase, he or she may enjoy a lower price if enough buyers (usually two) join the team.
A buyer can initiate a team purchase and share product information on social networks, such as Weixin and QQ, to
invite his or her social contacts to form a shopping team. The buyer’s social contacts can in turn refer our platform to their
social contacts easily and thus enable us to reach even more potential buyers. After initiating a team purchase, a buyer may
also wait for other buyers on our platform to join the team purchase. Alternatively, a buyer can choose to join an active
team purchase listed on our platform, which is initiated by other buyers who may or may not be his or her social contacts.
After a team purchase is initiated, it will have 24 hours to meet the minimum team size mandated by the merchant. As soon
as the minimum number of buyers is reached, the team purchase will be confirmed. If the minimum team size is not
reached within 24 hours, the team purchase order may be cancelled with all payments made by the buyers refunded.
The team purchase option allows us to acquire buyers effectively and efficiently and expand our buyer base
organically. Buyers refer our platform to their social contacts in order to take advantage of the more attractive team
purchase prices compared to the individual purchase option. The new buyers in turn introduce our platform to even more
buyers. The established trust, similar shopping interests and consumption patterns shared among our buyers and their
friends, family members and other social network contacts help enhance buyer engagement, grow our buyer base while
keeping buyer acquisition costs low.
After the buyers receive the products, they may return to the product description pages and leave reviews on the
purchased products and their shopping experiences.
62
Table of Contents
Our Fun Elements
We provide our buyers with a fun and interactive shopping experience. We embed in our mobile app a variety of fun
elements such as games, livestreaming and promotions, to encourage user interactions, sharing, and platform engagement.
The following are examples of the fun and engaging elements in our app.
Duo Duo Orchard. In May 2018, we launched a fun and user-engaging feature, Duo Duo Orchard. Through this
feature, users on our platform can plant a virtual fruit tree in our Duo Duo Orchard and virtually water and grow it on our
platform to win prizes in the form of real fruits. Our users can earn “virtual water” by accomplishing certain tasks
including making purchases on our platform, logging into their accounts, inviting friends, or clicking on displays of
products provided by merchants who participate in the “Duo Duo Orchard” program. Once a user’s virtual tree bears fruit,
we will send him or her a basket of real fresh fruits. The straightforward gameplay and rewards for frequent visits
encourage greater user engagement. The game features daily missions that incorporate fun shopping and seamless
browsing elements while other game elements encourage playing and sharing with friends. In addition to being a user
engagement tool, Duo Duo Orchard also helps us make an impact on underprivileged farming communities. The fruits
delivered as prizes are sourced primarily from impoverished areas like Southern Xinjiang, and we also highlight different
agricultural products daily from these impoverished areas to drive greater sales for these farmers while users earn
additional virtual water through their purchase.
Duo Duo Live. In November 2019, we launched Duo Duo Live, our livestreaming services to empower merchants on
our platform to share the stories of their brands, demonstrate and promote their products and engage directly with our
substantial user base. Our livestreaming services focus on interactions and experiences, not solely on sales volume. Duo
Duo Live helps our merchants to build trust and gain recognition with users and encourages our users to communicate and
interact with merchants. We are also using Duo Duo Live to bring our users closer to certain offline experiences that they
might not otherwise be able to appreciate in their everyday. For example, we hosted museum tours on Duo Duo Live to
show case the history and behind-the-scene stories of the museums worldwide, while our users browsed through relevant
products, making the experience more interactive and fun.
Our Buyers
Direct buyer traffic to our platform is primarily generated from word-of-mouth referrals by our existing buyers as well
as the effect of our marketing campaigns. A portion of our buyer traffic comes from our user recommendation or product
introduction feature which buyers can share with friends or contacts through social networks such as Weixin and QQ. In
addition, buyers may also access our platform and make purchases via our mini-program within Weixin directly. Mini-
program is a light feature embedded in Weixin to facilitate discovery and download of stand-alone mobile apps. It is an
enhancement of Weixin official accounts and is designed to connect service providers with mobile users. This embedded
feature is currently provided to service providers for free, and the user interface of our mini-program is substantially
identical to our own mobile app with the same product offerings by the same merchants. Therefore, the manner in which a
buyer accesses our platform does not affect the way in which we derive our revenues. Due to the nature of our business
model, which resembles a dynamic and interactive shopping experience, it is impracticable for us to accurately bifurcate
and quantify the buyer traffic generated directly through our platform and through social networks. Therefore, during our
daily operations, we focus more on the GMV on our platform as a whole and the seamless user experience across different
access points, and believe that the final purchase destination cannot be used to reflect the significance of social networks
and our Pinduoduo mobile app to our business operations.
Our Merchandise Selection
We provide a comprehensive suite of product categories on our platform, including apparel, shoes, bags, mother and
childcare products, food and beverage, fresh produce, electronic appliances, furniture and household goods, cosmetics and
other personal care items, sports and fitness items and auto accessories. Our GMV in 2017, 2018 and 2019 was RMB141.2
billion, RMB471.6 billion and RMB1,006.6 billion (US$144.6 billion), respectively. In 2019, our platform had 5.1 million
active merchants.
63
Table of Contents
Merchants on our platform set the price for their products. We encourage merchants to offer the most attractive prices
for merchandise sold on our platform. Two listed prices typically apply to each merchandise, one for the individual
purchase option and a lower price for the team purchase option. Due to the large sales volume generated on our platform,
some of the merchants on our platform also set aside exclusive product supplies for us and offer the most competitive
prices for our buyers.
At the same time, we implement strict policies and control measures aimed at ensuring the accuracy of product
descriptions on our platform. Our merchant onboarding system is integrated with an identity verification system. After a
merchant undergoes our registration process and is admitted to our platform but before it is allowed to place any
merchandise on our platform or launch a sales event, it must make a deposit to guarantee its compliance with our
platform’s policies and rules, and the amount of such deposit varies depending on merchant type and merchandise category.
Before the product information is posted on our platform, we leverage our artificial intelligence-based screening system to
identify potential issues and submit questionable merchandise for further review and verification. After product
information has been posted, our system continues to monitor and conduct semantic analysis on buyer reviews, the results
of which are used as inputs for evaluation of the associated merchant’s compliance with our policies. If a merchant is found
to have violated our policies, we compensate the buyers on behalf of the merchant in accordance with the service
agreement with the merchant on our platform. In addition to responding to buyer complaints, our dedicated merchandise
control team also conducts randomized test purchases to verify whether product descriptions match the products delivered.
A merchant’s record of compliance, together with other factors such as its sales volume and buyer feedback and reviews, is
taken into account when our platform compiles such merchant’s ranking, which may affect the level of exposure it receives
on our platform and in turn may affect its sales volume. We also continue to invest in technical capabilities relating to
keyword identification, filtering images, text and video recognition and the development of a blacklisting mechanism. For
example, we have developed a search algorithm that displays legitimate brand names and products even when users key in
an infringing brand. In addition, we are in the process of establishing a fast-track IP channel in cooperation with
government authorities to help merchants apply for their own trademarks and build their own brands. We also reward
merchants who sell high-quality products and provide superb services with preferential transaction services fee rates, as
part of our continued efforts to improve user experience, thereby creating a virtuous cycle that attracts high-quality
merchants and weeds out counterfeit and infringing goods.
Additionally, we require merchants on our platform to strictly abide by a seven-day return period policy for
nonperishable products sold by them on our platform. In accordance with the policy, buyers can return the products within
the period so long as the products are in their original condition and any usage of such products does not affect the
merchants’ ability to resell. Once a buyer submits a return request, the relevant merchant will first review and process the
request. In the event that the request cannot be resolved within 48 hours or a dispute escalates, we will be involved to
resolve the request or dispute.
Our Services and Values to Merchants
Our merchants benefit from our broad buyer reach and the high sales volume on our platform as well as value-added
services such as online marketing services, data analysis and advice. We provide online marketing services to help
merchants promote their merchandise more effectively and also offer them additional training resources and merchant
support through Duo Duo University. Duo Duo University is easily accessible through our main merchant dashboard and is
frequently updated to guide merchants through the various tools available to them on our platform. Through the same
dashboard, merchants can also apply to participate in the various promotional activities on our platform, such as our
shopping festivals.
In addition, we strive to leverage data analytics and artificial intelligence capabilities to help merchants optimize their
supply chain capabilities. The large scale of our business gives us extensive data, enabling us to better understand and serve
our buyers and to better predict potential sales volume of certain merchandise potentially. We can channel valuable
analytical findings to merchants on our platform so that they can adjust their production, inventory planning, sales plans,
and logistic services accordingly. As a result, upstream suppliers are better informed of consumer demand and transformed
by the “C2M” (Consumer-to-Manufacturer). C2M is a multi-year, multi-stage process, and we are still in the early innings.
64
Table of Contents
Our “Internet + Agriculture” Initiative
We leveraged our platform and developed our “Internet + Agriculture” initiative to facilitate direct sales between
small-scale farmers and consumers. By making recommendations to consumers based on our understanding of their
preferences in product variety and price through our distributed AI framework, we are able to aggregate demand, thereby
generating large volumes of orders for our farmer merchants. The large demand helps them to be less dependent on
distributors and makes it possible for them to sell directly to consumers, thereby improving the overall supply chain
efficiency and reducing cost.
Through such an initiative, consumers end up getting fresher and safer products for lower price while farmers get to
earn more income, which can be reinvested in their farming equipment and practices to further improve production
quantity and quality. This market we created for fresh produce will also enable the logistics companies to optimize their
procedures for delivering fresh produce and reduce spoilage during the delivery process, creating value in the supply chain.
With this initiative, we help to battle poverty in rural China. Going forward, we plan to continue to increase our efforts
in this area and provide more platform-wide support to the development of China’s agricultural market. In April 2019, we
entered into a strategic collaboration framework agreement with People’s Government of Yunnan Province. We committed
to improve the online direct sales of agricultural products from Yunnan and to work closely with local governments and
producers to reorganize and enhance the agricultural industry value chain from production to processing, and from
distribution to sales. In the future, we may enter into similar collaboration with other regions of China.
Developing “Pin” Brands
In December 2018, we established a “New Brand Initiative” to help merchants launch their own brands. By leveraging
the traffic on our platform and directing users to discover these value-for-money products, we are able to jump-start the
growth of these domestic brands with a steady source of aggregated demand. With larger order volumes, these merchants
are able to realize greater economies of scale and can re-invest those savings by sharing them with consumers or putting
them into product development and marketing to build their own brands. We have also utilized our big data technology to
inform merchants of emerging trends and consumer preferences, which they can take into consideration when managing
their inventory or developing new products tailored for different consumer groups. Within the first wave of manufacturers
we have worked with, our data insights have contributed towards the development of a number of popular products which
have subsequently become signature products of those brands.
Technology
Our smooth operations and rapid growth are supported by our proprietary technology. Our leading technology team,
coupled with our proprietary technology infrastructure and the large volume of data generated and collected on our
platform each day, have created opportunities for continuous improvements in our technology capabilities, which in turn
draws new talents to join us. As of December 31, 2019, we had a technology team with more than 3,600 engineers. Many
of our engineers have post-graduate degrees and had prior working experience in Google, Microsoft and leading internet
companies in China. Key components of our technology include:
Big Data Analytics Platform
We build our big data analytics capability upon our distributed computing infrastructure that can efficiently handle
complex computing tasks of billions of data instances and millions of analytical dimensions. Based on buyers’ purchase
behaviors and usage patterns, we leverage big data analytics and artificial intelligence technology to optimize our operation
and enhance user experience. For example, we not only look into the basic order information but also buyer behavioral data
such as how long such buyer spent on browsing and reviewing a particular product and products of similar categories. We
then strive to build predictive and statistical models based on the big data we have accumulated.
65
Table of Contents
Distributed Artificial Intelligence and Machine Learning
To date, we have applied various artificial intelligence and machine learning technologies on our platform in multiple
areas to enhance user experience.
For example, we are gradually applying artificial intelligence technology to establish user profiling and model
iteration, which may enable us to provide more accurate recommendation of products to our buyers to maximize consumer
satisfaction. In addition, we are developing our distributed artificial intelligence system to offer a differentiated approach to
data protection and infrastructure from the mainstream centralized artificial system. Our distributed artificial intelligence is
built on the assumptions that people’s decisions could be influenced by people around them, people they trust, and the
environment they are in, and that decision-making process is dynamic.
Our deep learning capabilities can also accelerate our innovations in areas such as image recognition, speech
recognition, text and voice interaction, item recommendation and automated question answering.
Data Security and Protection
We have established a comprehensive security system, supported by our network situational awareness and risk
management system that spans from the individual end users across our entire network, covering our platforms, data and
services. Our back-end security system is capable of handling hundreds of millions of instances of malicious attacks each
day to safeguard the security of our platform and to protect the privacy of our buyers and merchants.
We have a data security team of engineers and technicians dedicated to protecting the security of our data. We have
also adopted strict data protection policy to ensure the security of our proprietary data. We collect anonymized, non-
confidential user behavior and pattern data based on their interactions with our platform through our social network
partners, which have been pre-processed to exclude user identity or other sensitive information. We encrypt confidential
personal information we gather from our own platform. To ensure data security and avoid data leakage, we have
established stringent internal protocols under which we grant classified access to confidential personal data only to limited
employees with strictly defined and layered access authority. We strictly control and manage the use of data within our
various departments and do not share data with external third parties, nor do we cooperate with third-party vendors in data
analytics efforts.
Marketing
We have been able to build a large base of loyal buyers primarily through word-of-mouth referrals via social networks.
To enhance our brand awareness, we also conduct online and offline marketing and brand promotion activities, including
sponsoring high-profile shows and events and running commercials on national television networks. For example, we
advertised our platform through sponsoring China Central Television’s live broadcasting of the 2018 FIFA World Cup and
the 2019 Spring Festival Gala. In addition, we host various offline marketing activities to merchants to promote our brand
image and the value of our online marketplace services. Furthermore, we offer coupons from time to time to stimulate
buyer engagement on our platform. In the second quarter of 2019, we launched our “10 Billion RMB Subsidies” campaign,
which provided incremental subsidies to motivate our users to explore new product categories on our platform and
purchase certain coveted items that they might have otherwise dismissed because of price or lack of familiarity with our
platform. This campaign enhances our users trust and engagement on our platform, which we believe accrue to the long-
term value of our company.
Competition
The e-commerce industry in China is intensely competitive. Our current or potential competitors include (i) major e-
commerce companies in China, (ii) major traditional and brick-and-mortar retailers in China, (iii) retail companies in China
focused on specific product categories and (iv) major internet companies in China that do not operate e-commerce business
now but may enter the e-commerce business area or are in the process of initiating their e-commerce businesses.
66
Table of Contents
We compete primarily on the basis of:
● our large and active buyer base;
● the fun and interactive shopping experiences on our platform;
● our ability to seamlessly connect e-commerce with social networks;
● pricing of products sold on our platform;
● our ability to attract and retain merchants;
● product quality and selection;
● brand recognition and reputation; and
● the experience and expertise of our management team.
Seasonality
We experience seasonality in our business, reflecting a combination of seasonal fluctuations in internet usage and
traditional retail seasonality patterns. For example, we generally experience less buyer traffic and purchase orders during
the Chinese New Year holiday season in the first quarter of each year. Furthermore, sales are significantly higher in the
fourth quarter of each calendar year than in the preceding three quarters. E-commerce companies in China hold special
promotional campaigns on November 11 and December 12 each year that boost sales in the fourth quarter relative to other
quarters, and we hold a special promotional campaign in the fourth quarter of each year to celebrate the anniversary of the
founding of our platform. Due to our limited operating history, the seasonal trends that we have experienced in the past
may not apply to, or be indicative of, our future operating results.
Intellectual property
As of December 31, 2019, we owned 28 computer software copyrights in China relating to various aspects of our
operations and maintained approximately 524 trademark registrations inside China and 35 trademark registrations outside
China. We also had 200 trademark applications inside China. Our registered domain names include www.pinduoduo.com,
among others.
Corporate Social Responsibility
Corporate social responsibility has been central to how we do business, starting with operating with integrity in all we
do and extending to serving the community at large in China.
Our chairman and chief executive officer, Mr. Zheng Huang, strongly believes in giving back to social causes and
communities in need and is an adamant advocate for using science and technology to benefit our society. Mr. Huang is in
the process of establishing a private charitable foundation. This foundation will focus on supporting our employees who
have emergency needs and promoting corporate social responsibility efforts that are consistent with our values, beliefs and
vision. Mr. Huang has set aside approximately 2.1% of our total outstanding shares at the time of our initial public offering
to fund this foundation. We will establish a management committee consisting of our management team or members of
Pinduoduo Partnership to supervise the allocation of the fund to worthy causes and initiatives and manage its daily
operations.
Mr. Huang also plans to establish an additional private charitable foundation to support scientific and medical research
and frontier technology. This foundation is to be funded by his ownership stake in our company with a size to be
determined.
67
Table of Contents
Social Impact of Our Initiatives
Apart from Mr. Huang’s personal efforts, we have also had a meaningful impact on the rural poverty in China. In 2019,
our “Internet + Agriculture” cycle connects our 585.2 million users directly to growers in rural areas through our efficient
supply-chain and logistic optimization. Notable successes include Meishan County in Sichuan Province, a landlocked area
that grows high-quality tangerines. The rural village has over 1,000 tangerine growers and they saw a good harvest in the
autumn of 2018 but they had no choice but to allow their fruits to rot in their orchards as they had little convenient access
to the market. After listing their fresh produce on our platform, the tangerine growers received over 70,000 orders in 48
hours and they sold the products at a stable selling price that was many times above the price they could fetch locally. In
2019, 49 women living in a remote village in Xinjiang Uyghur Autonomous Region set up an agricultural co-op and
launched a flagship store on our platform to sell local agricultural produce. The flagship store received over 110,000 orders
of walnuts in three months, amounted to RMB3.5 million (US$0.5 million).
In addition, we leverage the feature on our Duo Duo Orchard to help farmers sell their produce and increase their
income while creating more fun and interactive shopping experience for our users. We will continue to step up our efforts
and provide more platform-wide support to farmers on our platform.
To help alleviate the hardship from the outbreak of COVID-19, we have donated more than 1 million facial masks,
200,000 gloves, and 30 tons of disinfectant. Furthermore, we set up a RMB100.0 million (US$14.4 million) fund with
Zhejiang University to support research for prevention and control of viral infection and respiratory diseases. The fund will
also support research in medical resource allocation in heavily infected areas.
Regulation
This section sets forth a summary of the most significant rules and regulations that affect our business and operations
in China or the rights of our shareholders to receive dividends and other distributions from us.
Regulations Relating to Foreign Investment
Guidance Catalogue of Industries for Foreign Investment
Investment activities in the PRC by foreign investors are in principal governed by the Guidance Catalogue of
Industries for Foreign Investment, which was promulgated and is amended from time to time by the Ministry of
Commerce, or MOFCOM, and the National Development and Reform Commission, or NDRC. In June 2017, MOFCOM
and NDRC promulgated a revision of the Guidance Catalogue of Industries for Foreign Investment, or the Catalogue,
effective in July 2017, which was replaced by the Catalogue of Industries for Encouraging Foreign Investment (2019
Version), or the Encouraging Catalogue, promulgated by the NDRC and the MOFCOM on June 30, 2019 and effective on
July 30, 2019. On June 30, 2019, the NDRC and the MOFCOM jointly promulgated the Special Administrative Measures
for Access of Foreign Investment (2019 Version), or the Negative List, effective on July 30, 2019, which replaced the
Special Administrative Measures for Access of Foreign Investment effective in July 2018. Pursuant to the Encouraging
Catalogue and the Negative List, foreign-invested projects are classified into three categories: “encouraged,” “restricted”
and “prohibited.” Industries not listed in the Negative List are generally deemed as falling into a fourth category
“permitted” unless specifically restricted by other PRC laws. Formation of wholly foreign-owned enterprises is generally
allowed in encouraged and permitted industries. Some restricted industries are limited to equity or contractual joint
ventures, and in some cases Chinese partners are required to hold the majority interests in such joint ventures. In addition,
foreign investment in restricted category projects is subject to government approvals. Foreign investors are not allowed in
industries in the prohibited category.
In addition to restrictions on shareholding ownership by foreign investors, the Negative List also sets out other
requirements on corporate governance practice, such as the composition of board or senior management. Foreign
investment in value-added telecommunications services (except for e-commerce, domestic multi-party communications,
storage and forwarding classes, and call centers) falls within the Negative List, and foreign investors are not allowed to
hold more than 50% of the total shares in such business.
68
Table of Contents
In October 2016, MOFCOM issued the Interim Measures for Record-filing Administration of the Establishment and
Change of Foreign-invested Enterprises, or FIE Record-filing Interim Measures. Pursuant to the latest FIE Record-filing
Interim Measures, except where a special approval is required, the formation of, and subsequent change made to foreign-
invested enterprises does not require pre-approval by the MOFCOM or its local counterpart and are only subject to record-
filing procedures as long as such action does not involve special entry administration measures. In December 2019, the
MOFCOM and the SAIC promulgated the Measures on Reporting of Foreign Investment Information, or the Foreign
Investment Information Measures, which became effective on January 1, 2020 and replaced the FIE Record-filing Interim
Measures. Pursuant to the Foreign Investment Information Measures, foreign investors and foreign-invested enterprises
shall submit investment information through the Enterprise Registration System and the National Enterprise Credit
Information Publicity System operated by the SAIC for their foreign investment directly or indirectly in the PRC.
Pursuant to the Provisions on Administration of Foreign-Invested Telecommunications Enterprises promulgated by the
State Council in December 2001 and most recently amended in February 2016, or the FITE Regulations, the ultimate
foreign equity ownership in a value-added telecommunications services provider may not exceed 50%. Moreover, foreign
investors need to meet a number of stringent requirements on historical performance and operation track record to be
qualified to acquire any equity interest in a value-added telecommunication business in China. Foreign investors that meet
these requirements must obtain approvals from the Ministry of Industry and Information Technology, or MIIT, and
MOFCOM or their authorized local counterparts, which retain considerable discretion in granting approvals. MIIT issued
the Circular on Strengthening the Administration of Foreign Investment in and Operation of Value-added
Telecommunications Business in July 2006. Under this circular from the MIIT Circular, a domestic company that holds an
telecommunications business operating licenses is prohibited from leasing, transferring or selling the license to foreign
investors in any form, and from providing any assistance, including providing resources, sites or facilities, to foreign
investors that conduct value-added telecommunications business illegally in China.
Pursuant to publicly available information, the PRC government has issued telecommunications business operating
licenses to only a limited number of FIEs, most of which are Sino-foreign joint ventures engaging in the value-added
telecommunication business. In June 2015, MIIT issued the Circular on Removing the Restrictions on Equity Ratio Held
by Foreign Investors in Online Data Processing and Transaction Processing (Operating E-Commerce) Business to amend
the relevant provisions in the FITE Regulations, allowing foreign investors to own more than 50% of equity interest in an
operator that “conducts e-commerce” business. However, other requirements provided by the Foreign Investment
Telecommunications Rules (such as the track record and experience requirement for a major foreign investor) still apply,
and foreign investors are still prohibited from holding more than 50% of equity interest in a provider of other subcategories
of value-added telecommunications services.
To comply with PRC laws and regulations, we rely on contractual arrangements with our VIE to operate our e-
commerce business in China. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Corporate Structure
—We rely on contractual arrangements with our VIE and its shareholders for a large portion of our business operations,
which may not be as effective as direct ownership in providing operational control.”
69
Table of Contents
Foreign Investment Law
On March 15, 2019, the National People’s Congress approved the Foreign Investment Law, which took effect on
January 1, 2020 and replaced the Sino-Foreign Equity Joint Venture Enterprise Law, the Sino-Foreign Cooperative Joint
Venture Enterprise Law and the Foreign Owned Enterprise Law, together with their implementation rules and ancillary
regulations. This new law is now the foundation for regulation on foreign investments in China. The Foreign Investment
Law implements a system of pre-entry national treatment with a negative list for foreign investments, pursuant to which (i)
foreign entities and individuals are prohibited from investing in the areas that are not open to foreign investments, (ii)
foreign investments in the restricted industries must satisfy certain requirements under the law, and (iii) foreign
investments in business sectors outside of the negative list will be treated equally with domestic investments. The Foreign
Investment Law stipulates three forms of foreign investments, but does not explicitly name contractual arrangements as a
form of foreign investments. Notwithstanding the above, the Foreign Investment Law sets a very broad definition of
“foreign investment” to catch any activities where foreign investors investing in China through “any other methods” under
laws, administrative regulations, or provisions prescribed by the State Council. On December 26, 2019, the State Council
promulgated the Implementation Regulations on the Foreign Investment Law, which came into effect on January 1, 2020.
However, the Implementation Regulations on the Foreign Investment Law still remains silent on whether contractual
arrangements should be deemed as a form of foreign investment. Therefore, it still leaves leeway for future laws,
administrative regulations or provisions promulgated by the State Council to classify contractual arrangements as a form of
foreign investments. In that case our contractual arrangements might be deemed to be in violation of the foreign investment
restriction. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Corporate Structure—We face
uncertainties with respect to the implementation of the Foreign Investment Law and how it may impact the viability of our
current corporate structure, corporate governance and business operations.”
Licenses, Permits and Filings
The PRC government puts extensive regulation over the telecommunications industry, particularly the internet service
sector. The State Council, MIIT, MOFCOM, SAIC, the former State Administration of Press, Publication, Radio, Film and
Television (which has been replaced by the State Administration of Radio and Television), and other relevant government
authorities have promulgated an extensive regulatory scheme governing telecommunications, online sales and e-commerce.
New laws and regulations may be adopted from time to time that will require us to obtain additional licenses and permits in
addition to those that we currently have, and will require us to address new issues that arise from time to time. In addition,
uncertainties exist regarding the interpretation and implementation of current and any future PRC laws and regulations
applicable to the telecommunications, online sales and e-commerce. See “Item 3. Key Information—D. Risk Factors—
Risks Related to Our Business and Industry—Any lack of additional requisite approvals, licenses or permits required due
to regulatory changes of PRC governmental authorities or failure to comply with any requirements of PRC laws and
regulations may materially and adversely affect our daily operations and hinder our growth.”
We are required to hold certain licenses and permits and to make certain filings with the relevant PRC governmental
authorities in connection with various aspects of our business, including the following:
Value-Added Telecommunication Business Operating Licenses
In September 2000, the Telecommunications Regulations of the People’s Republic of China were issued by the State
Council as the primary governing law on telecommunication services. The Telecom Regulations set out the general
framework for the provision of telecommunication services by PRC companies. Under the this regulation,
telecommunications service providers are required to obtain operating licenses prior to commencement of operations. It
draws a distinction between “basic telecommunications services” and “value-added telecommunications services.” In
December 2015, MIIT released the Catalog of Telecommunication Business (2015 Revision), under which both the online
data processing and transaction processing business (i.e., operating e-commerce business) and information service
business, were categorized as value-added telecommunication services. This catalog further specifies the scope of
information service business, which covers information release and delivery services, information search and query
services, information community platform services, information real-time interactive services, and information protection
and processing services.
70
Table of Contents
In March 2009, MIIT issued the Administrative Measures for Telecommunications Business Operating Permit, which
confirm the two types of telecom operating licenses for operators in China, namely, licenses for basic telecommunications
services and licenses for value-added telecommunications services. The operation scope of thelicense will detail the
permitted activities of the enterprise to which it is granted. An approved telecommunication services operator shall conduct
its business in accordance with the specifications recorded on its value-added telecommunication business operating
licenses, or VATS Licenses. In addition, a VATS License holder is required to obtain approval from the original permit-
issuing authority before any change to its shareholders or business scope could occur. In February 2015, the State Council
has issued the Decisions on Cancelling and Adjusting a Batch of Administrative Approval Items, which, among others,
replaced the pre-registration approval requirement for telecommunications business with post-registration approval
requirement.
In September 2000, the State Council promulgated the Administrative Measures on Internet Information Services,
pursuant to which commercial internet content-related services operators shall obtain a VATS License for internet content
provision business, or the ICP License, from the relevant government authorities before engaging in any commercial
internet content-related services operations within China.
Our consolidated affiliated entity, Shanghai Xunmeng, the main operating entity which provides platform service to
third-party merchants for their sales of products, has obtained a VATS License for online data processing and transaction
processing business (operating e-commerce, excluding internet finance and e-hailing services) and internet information
services (excluding information search and inquiry services and real-time interactive information services) from Shanghai
Communications Administration, and this license will expire in August 2022. Another consolidated affiliated entity,
Hangzhou Aimi, has obtained a VATS License for online data processing and transaction processing business (operating e-
commerce, excluding internet finance and e-hailing services) and internet information services (excluding information
search and inquiry services and real-time interactive information services). The license was issued by Zhejiang
Communications Administration and is scheduled to expire in July 2020.
Internet Drug Information Service Qualification Certificate
The State Food and Drug Administration, or the SFDA (which has now been merged into SAIC), promulgated the
Administrative Measures on Internet Drug Information Service in July 2004 and certain implementing rules and notices
thereafter. These measures set out regulations governing the classification, application, approval, content, qualifications
and requirements for internet drug information services. An internet information service operator that provides information
regarding drugs or medical equipment must obtain an Internet Drug Information Service Qualification Certificate from the
province-level counterpart of the SFDA. Shanghai Xunmeng holds an Internet Drug Information Service Qualification
Certificate issued by the Shanghai Municipal Food and Drug Administration for the provision of internet medical
information services, and this license will remain valid until January 2022.
Filing by Online Trading Platforms Providing Services for the Distribution of Publications
We are subject to regulations relating to online trading platform services provided for distribution of publications
including books and audio-video products. Pursuant to the Regulation on the Protection of the Right to Network
Dissemination of Information promulgated by the State Council, a network service provider of information storage,
searching and linking services, should remove the link to a work, performance or audio-video product if the work is
suspected of infringing on other’s right. The removal should take place promptly by the service provider upon receipt of a
notice alleging such infringement issued by the owner of such work or audio-video products. According to the Provisions
on the Administration of the Publication Market, an online trading platform that provides services for the distribution of
publications shall complete filing procedures with the competent publication administrative authority. An online trading
platform is required to examine the identity of the dealers distributing publications through the platform, verify their
business license and Publications Operation Permit, establish a mechanism to prevent and control the trading risks and take
effective measures to rectify illicit actions conducted by the dealers distributing publications on the platform. If any entity
subject to such requirements fails to complete the filing or fails to fulfill the relevant duties of examination and supervision
in accordance with this regulation, it may be subject to an order to cease illegal acts and a warning by the competent
publication administrative authority, as well as a penalty not exceeding RMB30,000. Shanghai Xunmeng has completed the
requisite procedures with the relevant publication authority.
71
Table of Contents
Filing by Third-Party Platforms Providers for Medical Device Online Trading Services
The SFDA promulgated the Measures for the Supervision and Administration of Online Sale of Medical Devices in
December 2017, which became effective in March 2018. Pursuant to such measures, a third-party platform providing
online trading services for medical devices shall complete filing procedures with the competent provincial food and drug
administrative department. According to the measures, a third-party platform that fails to complete the filing in accordance
with the measures may be ordered by the competent provincial food and drug administrative department to make
rectification within a prescribed time limit, and failure to make such rectification may subject the platform to public
exposure of incompliance and a penalty of not exceeding RMB30,000. Shanghai Xunmeng has completed the requisite
procedures with the relevant administrative authority.
Filing by Third-Party Platform Providers for Online Food Trading
In July 2016, the SFDA promulgated the Measures for Investigation and Handling of Illegal Acts Involving Online
Food Safety, pursuant to which a third-party platform providing online food trading in the PRC shall file a record with the
food and drug administration at the provincial level and obtain a filing number. Where the platform fails to complete such
filing, it may be ordered to make rectifications and given a warning by the competent food and drug administration, and
failure to make such rectification may be subject to fines ranging from RMB5,000 to RMB30,000. Shanghai Xunmeng has
completed the requisite procedures with the competent food and drug administration.
Regulations Relating to E-Commerce
In January 2014, SAIC adopted the Administrative Measures for Online Trading, or the Online Trading Measures.
Under the Online Trading Measures, e-commerce platform operators shall examine and register the identity of the
merchants when such merchants apply for registration on their e-commerce platforms, review and update the identity
information regularly, and keep record of the identity information. It is further provided that e-commerce platform
operators shall make publicly available the link to, or the information contained, in the business licenses of such merchants
(if the merchants are business entities) or a label confirming the verified identity of the merchants (if the merchants are
individuals). A consumer is entitled to return the merchandise within seven days from the date after receipt of the
merchandise without a reason, except for customized products, fresh and perishable goods, audio-visual products
downloaded online or unpackaged by consumers, computer software and other digital products, and newspapers and
journals. Merchants shall, within seven days upon receipt of the returned merchandise, provide full refunds to consumers.
In addition, e-commerce platform operators shall not, through contractual terms or other means, set out the provisions that
are not fair or reasonable to consumers such as those that exclude or restrain consumers’ rights, relieve or exempt
operators’ responsibilities, and increase the consumers’ burdens, and shall not, through contractual terms or technical
means, conduct transactions in a forcible manner.
72
Table of Contents
In August 2018, the Standing Committee of the National People’s Congress promulgated the E-Commerce Law, which
took effect in January 2019. The E-commerce Law proposes a series of requirements on e-commerce operators including
individuals and entities carrying out business online, e-commerce platform operators and merchants on the platform. For
example, the E-Commerce Law requires e-commerce platform operators to respect and indiscriminately protect consumers’
legitimate rights and provide options to consumers, and also requires e-commerce operators to clearly point out to
consumers their bundle sales in which additional services or products are added by merchants to a purchase, and not to
assume consumers’ consent to such bundle sales by default. E-commerce platform operators are required under the E-
Commerce Law to establish a credit evaluation system and publicize the credit evaluation rules, and provide consumers
with ways to evaluate products sold or services provided on the platform. The E-Commerce Law also requires any e-
commerce platform operator to develop, and continuously publish or make publicly available by a prominent link on its
home page, its platform service agreement and transaction rules, specifying the rights and obligations of relevant parties
with respect to registration and de-registration on the platform, quality assurance and protection of consumer rights and
personal information, and to ensure convenient and full access to reading and downloading such service agreement and
transaction rules by merchants and consumers. Moreover, according to the E-Commerce Law, e-commerce platform
operators, who fail to take necessary actions when they know or should have known any intellectual property infringement,
product defects or other infringement of consumer rights by any merchant on the platform, will be imposed a joint liability
with the merchants; with respect to the products or services affecting consumers’ life and health, the e-commerce platform
operators will bear relevant responsibilities if they fail to review the qualifications of merchants or fail to safeguard the
interests of the consumers. In addition, the E-Commerce Law requires e-commerce operators, including individuals and
entities carrying out business online, e-commerce platform operators and merchants on these platforms, to display
prominently on their home page the information contained in their business licenses or administrative permits relating to
their operating businesses. Failure to take necessary actions against merchants on the e-commerce platforms that are not in
compliance with such requirements may subject the e-commerce platform operators to rectification within a specified
period and a fine between RMB20,000 and RMB100,000.
In December 2018, SAIC issued the “Opinions on Doing Well in E-Commerce Operator Registration,” which requires
e-commerce operators, including individuals and entities carrying out business online and e-commerce platform operators
and merchants on these platforms, to register with the local branches of SAIC. Individuals selling agricultural products or
conducting certain transactions with minimum economic value and low volume are not subject to these registration
requirements. Pursuant to these opinions, the e-commerce platform operators shall provide identity information of the
merchants on their platform to local branches of SAIC and prompt the merchants failing to make such registrations to
comply with the relevant registration requirements.
In March 2016, the State Administration of Taxation, the Ministry of Finance and the General Administration of
Customs jointly issued the Circular on Tax Policy for Cross-Border E-commerce Retail Imports, which took effect in
April 2016. Pursuant to this circular, goods imported through the cross-border e-commerce retail are subject to tariff,
import value-added tax, or VAT, and consumption tax based on the types of goods. Individuals purchasing any goods
imported through cross-border e-commerce retail are taxpayers, and e-commerce companies, companies operating e-
commerce transaction platforms or logistic companies are required to withhold the taxes.
Regulations Relating to Internet Information Security and Privacy Protection
Internet information in China is regulated from a national security standpoint. The National People’s Congress, or the
NPC, has enacted the Decisions on Preserving Internet Security, which subject violators to potential criminal punishment in
China for any attempt to: (i) gain improper entry into a computer or system of strategic importance; (ii) disseminate
politically disruptive information; (iii) leak state secrets; (iv) spread false commercial information; or (v) infringe
intellectual property rights. The Ministry of Public Security of the PRC has promulgated measures that prohibit use of the
internet in ways which, among other things, result in a leak of state secrets or a spread of socially destabilizing content. If
an internet information service provider violates these measures, the Ministry of Public Security and its local branches may
revoke its operating license and shut down its websites.
73
Table of Contents
In recent years, PRC government authorities have enacted laws and regulations on internet use to protect personal
information from any unauthorized disclosure. Under the Several Provisions on Regulating the Market Order of Internet
Information Services issued by the MIIT, an internet information service provider may not collect any user personal
information or provide any such information to third parties without the consent of the user. An internet information
service provider must expressly inform the users of the method, content and purpose of the collection and processing of
such user personal information and may only collect such information necessary for the provision of its services. An
internet information service provider is also required to properly maintain the user’s personal information, and in case of
any leak or likely leak of the user’s personal information, the internet information service provider must take immediate
remedial measures and, in severe circumstances, immediately report to the telecommunications authority. Moreover,
pursuant to the Ninth Amendment to the Criminal Law issued by the Standing Committee of the NPC in August 2015, any
internet service provider that fails to fulfill the obligations related to internet information security administration as
required by applicable laws and refuses to rectify upon orders, shall be subject to criminal penalty for the result of (i) any
dissemination of illegal information in large scale; (ii) any severe effect due to the leakage of the client’s information;
(iii) any serious loss of criminal evidence; or (iv) other severe situation. Any individual or entity that (i) sells or provides
personal information to others in a way violating the applicable law, or (ii) steals or illegally obtains any personal
information, shall be subject to criminal penalty in severe situation. In addition, the Interpretations of the Supreme People’s
Court and the Supreme People’s Procuratorate of the PRC on Several Issues Concerning the Application of Law in
Handling Criminal Cases of Infringing Personal Information, issued in May 2017, clarified certain standards for the
conviction and sentencing of the criminals in relation to personal information infringement. Further, the NPC promulgated
a new National Security Law, effective July 2015, to replace the former National Security Law and covers various types of
national security including technology security and information security.
In addition, the Standing Committee of the NPC promulgated the Cyber Security Law of the People’s Republic of
China, or the Cyber Security Law, effective June 2017, to protect cyberspace security and order. Pursuant to the Cyber
Security Law, any individual or organization using the network must comply with the constitution and the applicable laws,
follow the public order and respect social moralities, and must not endanger cyber security, or leverage the network to
engage in activities that endanger the national security, honor and interests, or infringe on the fame, privacy, intellectual
property and other legitimate rights and interests of others. The Cyber Security Law sets forth various security protection
obligations for network operators, which are defined as “owners and administrators of networks and network service
providers”, including, among others, complying with a series of requirements of tiered cyber protection systems, verifying
users’ real identity, localizing the personal information and important data gathered and produced by key information
infrastructure operators during operations within the PRC, and providing assistance and support to government authorities
where necessary for protecting national security and investigating crimes. Furthermore, MIIT’s Rules on Protection of
Personal Information of Telecommunications and Internet Users promulgated in July 2013, effective September 2013,
contain detailed requirements on the use and collection of personal information as well as security measures required to be
taken by telecommunications business operators and internet information service providers. On November 28, 2019, the
Secretary Bureau of the Cyberspace Administration of China, the General Office of the MIIT, the General Office of the
Ministry of Public Security and the General Office of the State Administration for Market Regulation promulgated the
Identification Method of Illegal Collection and Use of Personal Information Through App, which provides guidance for
regulatory authorities to identify the illegal collection and use of personal information through mobile apps and for mobile
app operators to conduct self-examination and self-correction.
74
Table of Contents
Regulations Relating to Product Quality and Consumer Rights Protection
The PRC Consumer Rights and Interests Protection Law, as amended in and effective March 2014, and the Online
Trading Measures, have provided stringent requirements and obligations on business operators, including internet business
operators and platform service providers. For example, consumers are entitled to return goods purchased online, subject to
certain exceptions, within seven days upon receipt of such goods for no reason. To ensure that sellers and service providers
comply with these laws and regulations, the platform operators are required to implement rules governing transactions on
the platform, monitor the information posted by sellers and service providers, and report any violations by such sellers or
service providers to the relevant authorities. In addition, online marketplace platform providers may, pursuant to the
relevant PRC consumer protection laws, be exposed to liabilities if the lawful rights and interests of consumers are
infringed upon in connection with consumers’ purchase of goods or acceptance of services on online marketplace platforms
and the online marketplace platform providers fail to provide consumers with the contact information of the seller or
manufacturer. In addition, online marketplace platform providers may be jointly and severally liable with sellers and
manufacturers if they are aware or should be aware that any seller or manufacturer is using the online platform to infringe
upon the lawful rights and interests of consumers and fail to take measures necessary to prevent or stop such activity.
The Tort Liability Law of the PRC also provides that if an online service provider is aware that an online user is
committing infringing activities, such as selling counterfeit products, through its internet services and fails to take
necessary measures, it shall be jointly liable with the said online user for such infringement. If the online service provider
receives any notice from the infringed party on any infringing activities, the online service provider shall take necessary
measures, including deleting, blocking and unlinking the infringing content, in a timely manner. Otherwise, it will be held
jointly liable with the relevant online user for the extended damages.
We are subject to the PRC Consumer Rights and Interests Protection Law, the Online Trading Measures and the Tort
Liability Law of the PRC as an e-commerce platform service provider and believe that we are currently in compliance with
these regulations in all material aspects.
Regulations Relating to Internet Advertising Business
In July 2016, SAIC issued the Interim Measures for the Administration of Internet Advertising to regulate internet
advertising activities. It defines internet advertising as any commercial advertising that directly or indirectly promotes
goods or services through websites, webpages, internet applications and other internet media in the forms of words, picture,
audio, video or others, including promotion through emails, texts, images, video with embedded links and paid-for search
results. According to these measures, no advertisement of any medical treatment, medicines, food for special medical
purpose, medical apparatuses, pesticides, veterinary medicines, dietary supplement or other special commodities or
services subject to examination by an advertising examination authority and may be only published after passing the
examination. In addition, no entity or individual may publish any advertisement of over-the-counter medicines or tobacco
on the internet. An internet advertisement must be identifiable and clearly identified as an “advertisement” to the
consumers. Paid search advertisements are required to be clearly distinguished from natural search results. In addition, the
following internet advertising activities are prohibited: providing or using any applications or hardware to intercept, filter,
cover, fast forward or otherwise restrict any authorized advertisement of other persons; using network pathways, network
equipment or applications to disrupt the normal data transmission of advertisements, alter or block authorized
advertisements of other persons or load advertisements without authorization; or using fraudulent statistical data,
transmission effect or matrices relating to online marketing performance to induce incorrect quotations, seek undue
interests or harm the interests of others. Internet advertisement publishers are required to verify relevant supporting
documents and check the content of the advertisement and are prohibited from publishing any advertisement with
unverified content or without all the necessary qualifications. Internet information service providers that are not involved in
internet advertising business activities but simply provide information services are required to block any attempt to publish
an illegal advisement that they are aware of or should reasonably be aware of through their information services.
75
Table of Contents
Regulations Relating to Payment Services
In June 2010, the People’s Bank of China, or PBOC, issued the Administrative Measures for the Payment Services of
Non-Financial Institutions, or the Payment Services Measures. Under this rule, a non-financial institution must obtain a
payment business license, or Payment License, to provide payment services and qualifies as a paying institution. With the
Payment License, a non-financial institution may serve as an intermediary between payees and payers and provide some or
all of the following services: online payment, issuance and acceptance of prepaid card, bank card acceptance, and other
payment services as specified by PBOC. Without PBOC’s approval, no non-financial institution or individual may engage
in payment business whether explicitly or in a disguised form.
In November 2017, PBOC published a notice, or the PBOC Notice, on the investigation and administration of illegal
offering of settlement services by financial institutions and third-party payment service providers to unlicensed entities.
The PBOC Notice intended to prevent unlicensed entities from using licensed payment service providers as a conduit for
conducting the unlicensed payment settlement services, so as to safeguard the fund security and information security. We
believe that our pattern of receiving settlement services from commercial banks and third-party online payment service
providers are not in violation of the PBOC Notice. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our
Business and Industry—We rely on commercial banks and third-party online payment service providers for payment
processing and escrow services on our platform. If these payment services are restricted or curtailed in any way or become
unavailable to us or our buyers for any reason, our business may be materially and adversely affected.”
Regulations Relating to Intellectual Property in the PRC
Copyright
Pursuant to the Copyright Law of the PRC, copyrights include personal rights such as the right of publication and that
of attribution as well as property rights such as the right of production and that of distribution. Reproducing, distributing,
performing, projecting, broadcasting or compiling a work or communicating the same to the public via an information
network without permission from the owner of the copyright therein, unless otherwise provided in the Copyright Law of
the PRC, shall constitute infringements of copyrights. The infringer shall, according to the circumstances of the case,
undertake to cease the infringement, take remedial action, and offer an apology, pay damages, etc.
Trademark
Pursuant to the Trademark Law of the PRC, the right to exclusive use of a registered trademark shall be limited to
trademarks which have been approved for registration and to goods for which the use of such trademark has been
approved. The period of validity of a registered trademark shall be ten years, counted from the day the registration is
approved. According to this law, using a trademark that is identical to or similar to a registered trademark in connection
with the same or similar goods without the authorization of the owner of the registered trademark constitutes an
infringement of the exclusive right to use a registered trademark. The infringer shall, in accordance with the regulations,
undertake to cease the infringement, take remedial action, and pay damages, etc.
Patent
Pursuant to the Patent Law of the PRC, after the grant of the patent right for an invention or utility model, except
where otherwise provided for in the Patent Law, no entity or individual may, without the authorization of the patent owner,
exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process, or use,
offer to sell, sell or import any product which is a direct result of the use of the patented process, for production or business
purposes. After a patent right is granted for a design, no entity or individual shall, without the permission of the patent
owner, exploit the patent, that is, for production or business purposes, manufacture, offer to sell, sell, or import any product
containing the patented design. Once the infringement of patent is confirmed, the infringer shall, in accordance with the
regulations, undertake to cease the infringement, take remedial action, and pay damages, etc.
76
Table of Contents
Domain Name
Pursuant to the Measures for the Administration of Internet Domain Names of China, “domain name” shall refer to the
character mark of hierarchical structure, which identifies and locates a computer on the internet and corresponds to the
internet protocol (IP) address of that computer. The principle of “first come, first serve” is followed for the domain name
registration service. After completing the domain name registration, the applicant becomes the holder of the domain name
registered by him/it. Any organization or individual may file an application for settlement with the domain names dispute
resolution institution or file a lawsuit in the people’s court in accordance with the law, if such organization or individual
consider its/his legal rights and interests to be infringed by domain names registered or used by others.
Regulations Relating to Labor Protection in the PRC
According to the Labor Law of the PRC, or the Labor Law, an employer shall develop and improve its rules and
regulations to safeguard the rights of its workers. An employer shall develop and improve its labor safety and health
system, stringently implement national protocols and standards on labor safety and health, conduct labor safety and health
education for workers, guard against labor accidents and reduce occupational hazards.
The Labor Contract Law of the PRC and the Implementation Regulations on Labor Contract Law, regulate both parties
to a labor contract, namely the employer and the employee, and contain specific provisions involving the terms of the labor
contract. It is stipulated by the Labor Contract Law and the Implementation Regulations on Labor Contract Law that a
labor contract must be made in writing. An employer and an employee may enter into a fixed-term labor contract, an un-
fixed term labor contract, or a labor contract that concludes upon the completion of certain work assignments, after
reaching agreement upon due negotiations. An employer may legally terminate a labor contract and dismiss its employees
after reaching agreement upon due negotiations with the employee or by fulfilling the statutory conditions. Labor contracts
concluded prior to the enactment of the Labor Contract Law and subsisting within the validity period thereof shall continue
to be honored. With respect to a circumstance where a labor relationship has already been established but no formal
contract has been made, a written labor contract shall be entered into within one month from the effective date of the Labor
Contract Law.
According to the Interim Regulations on the Collection and Payment of Social Insurance Premiums, the Regulations
on Workplace Injury Insurance, the Regulations on Unemployment Insurance and the Trial Measures on Employee
Maternity Insurance of Enterprises, enterprises in the PRC shall provide benefit plans for their employees, which include
basic pension insurance, unemployment insurance, maternity insurance, workplace injury insurance and basic medical
insurance. An enterprise must provide social insurance by processing social insurance registration with local social
insurance agencies, and shall pay or withhold relevant social insurance premiums for or on behalf of employees. The Law
on Social Insurance of the PRC has consolidated pertinent provisions for basic pension insurance, unemployment
insurance, maternity insurance, workplace injury insurance and basic medical insurance, and has elaborated in detail the
legal obligations and liabilities of employers who do not comply with relevant laws and regulations on social insurance.
According to the Interim Measures for Participation in the Social Insurance System by Foreigners Working within the
Territory of China, employers who employ foreigners shall participate in the basic pension insurance, unemployment
insurance, basic medical insurance, occupational injury insurance, and maternity leave insurance in accordance with the
relevant law, with the social insurance premiums to be contributed respectively by the employers and foreigner employees
as required. In accordance with such Interim Measures, the social insurance administrative agencies shall exercise their
right to supervise and examine the legal compliance of foreign employees and employers, and the employers who do not
pay social insurance premiums in conformity with the laws shall be subject to the administrative provisions provided in the
Social Insurance Law and other relevant regulations and rules.
According to the Regulations on the Administration of Housing Provident Fund, housing provident fund contributions
by an individual employee and housing provident fund contributions by his or her employer shall belong to the individual
employee.
77
Table of Contents
The employer shall timely pay up and deposit housing provident fund contributions in full amount and late or
insufficient payments shall be prohibited. The employer shall process housing provident fund payment and deposit
registrations with the housing provident fund administration center. With respect to companies who violate the above
regulations and fail to process housing provident fund payment and deposit registrations or open housing provident fund
accounts for their employees, such companies shall be ordered by the housing provident fund administration center to
complete such procedures within a designated period. Those who fail to process their registrations within the designated
period shall be subject to a fine ranging from RMB10,000 to RMB50,000. When companies violate these regulations and
fail to pay up housing provident fund contributions in full amount as due, the housing provident fund administration center
shall order such companies to pay up within a designated period, and may further apply to the People’s Court for
mandatory enforcement against those who still fail to comply after the expiry of such period.
See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Business and Industry—Any lack of additional
requisite approvals, licenses or permits required due to regulatory changes of PRC governmental authorities or failure to
comply with any requirements of PRC laws and regulations may materially and adversely affect our daily operations and
hinder our growth.”
Regulations Relating to Tax in the PRC
Income Tax
The PRC Enterprise Income Tax Law was recently amended in February 2017. The PRC Enterprise Income Tax Law
applies a uniform 25% enterprise income tax rate to both foreign-invested enterprises and domestic enterprises, except
where tax incentives are granted to special industries and projects. Under the PRC Enterprise Income Tax Law, an
enterprise established outside China with “de facto management bodies” within China is considered a “resident enterprise”
for PRC enterprise income tax purposes and is generally subject to a uniform 25% enterprise income tax rate on its
worldwide income. Under the implementation regulations to the PRC Enterprise Income Tax Law, a “de facto management
body” is defined as the body that exercises full and substantial control and overall management over the business,
productions, personnel, accounts and properties of an enterprise.
In January 2009, the State Administration of Taxation, or SAT, promulgated the Provisional Measures for the
Administration of Withholding of Enterprise Income Tax for Non-resident Enterprises, or the Non-resident Enterprises
Measures, pursuant to which entities that have direct obligation to make certain payments to a nonresident enterprise shall
be the relevant tax withholders for such non-resident enterprise. Further, the Non-resident Enterprises Measures provide
that, in case of an equity transfer between two non-resident enterprises occurring outside China, which is indirectly related
to the transfer of equity interests of a PRC resident enterprise, the non-resident enterprise which receives the equity transfer
payment shall, by itself or engage an agent to, file tax declaration with the PRC tax authority located at the place of the
PRC company whose equity has been transferred, and the PRC company whose equity has been transferred shall assist the
tax authorities to collect taxes from the relevant non-resident enterprise. In April 2009, the Ministry of Finance, or MOF,
and SAT jointly issued the Notice on Issues Concerning Process of Enterprise Income Tax in Enterprise Restructuring
Business. In December 2009, SAT issued the Notice on Strengthening Administration of Enterprise Income Tax for Share
Transfers by Non-PRC Resident Enterprises, or Circular 698. Both the Notice on Issues Concerning Process of Enterprise
Income Tax in Enterprise Restructuring Business and Circular 698 became effective retroactively as of January 2008. In
February 2011, SAT issued the Notice on Several Issues Regarding the Income Tax of Non-PRC Resident Enterprises, or
SAT Circular 24. By promulgating and implementing these circulars, the PRC tax authorities have enhanced their scrutiny
over the direct or indirect transfer of equity interests in a PRC resident enterprise by a non-resident enterprise.
78
Table of Contents
In February 2015, SAT issued the Notice on Certain Corporate Income Tax Matters on Indirect Transfer of Properties
by Non-PRC Resident Enterprises, or SAT Circular 7, to supersede existing provisions in relation to the indirect transfer as
set forth in Circular 698, while the other provisions of Circular 698 remain in force. SAT Circular 7 introduces a new tax
regime that is significantly different from that under Circular 698. SAT Circular 7 extends its tax jurisdiction to capture not
only indirect transfers as set forth under Circular 698 but also transactions involving transfer of immovable property in
China and assets held under the establishment, and placement in China, of a foreign company through the offshore transfer
of a foreign intermediate holding company. SAT Circular 7 also addresses transfer of the equity interest in a foreign
intermediate holding company broadly. In addition, SAT Circular 7 provides clearer criteria than Circular 698 on how to
assess reasonable commercial purposes and introduces safe harbor scenarios applicable to internal group restructurings.
However, it also brings challenges to both the foreign transferor and transferee of the indirect transfer as they have to
determine whether the transaction should be subject to PRC tax and to file or withhold the PRC tax accordingly. In
October 2017, SAT issued the Announcement on Issues Relating to Withholding at Source of Income Tax of Non-resident
Enterprises, or SAT Circular 37. SAT Circular 37, effective December 2017, superseded the Non-resident Enterprises
Measures and SAT Circular 698 as a whole and partially amended some provisions in SAT Circular 24 and SAT Circular 7.
SAT Circular 37 purports to clarify certain issues in the implementation of the above regime, by providing, among others,
the definition of equity transfer income and tax basis, the foreign exchange rate to be used in the calculation of withholding
amount, and the date of occurrence of the withholding obligation. Specifically, SAT Circular 37 provides that where the
transfer income subject to withholding at source is derived by a non-PRC resident enterprise in instalments, the instalments
may first be treated as recovery of costs of previous investments. Upon recovery of all costs, the tax amount to be withheld
must then be computed and withheld.
Value-Added Tax
According to the Temporary Regulations on Value-added Tax and the Detailed Implementing Rules of the Temporary
Regulations on Value-added Tax, all taxpayers selling goods, providing processing, repair or replacement services or
importing goods within the PRC shall pay value-added tax. The tax rate of 17% shall be levied on general taxpayers selling
or importing various goods; the tax rate of 17% shall be levied on the taxpayers providing processing, repairing or
replacement service; the applicable rate for the export of goods by taxpayers shall be nil, unless otherwise stipulated.
Furthermore, according to the Trial Scheme for the Conversion of Business Tax to Value-added Tax, promulgated by
the Ministry of Finance and SAT in November 2011, the State Council began to launch taxation reforms in a gradual
manner in January 2012, whereby the collection of value-added tax in lieu of business tax items was implemented on a trial
basis in regions showing significant radiating effects in economic development and providing outstanding reform
examples, beginning with production service industries such as transportation and certain modern service industries.
In accordance with a SAT circular that took effect in May 2016, upon approval of the State Council, the pilot program
of the collection of value-added tax in lieu of business tax shall be promoted nationwide in a comprehensive manner
starting from May 2016, and all taxpayers of business tax engaged in the construction industry, the real estate industry, the
financial industry and the life science industry shall be included in the scope of the pilot program with regard to payment of
value-added tax instead of business tax.
In April 2018, MOF and SAT jointly promulgated the Circular of the Ministry of Finance and the State Administration
of Taxation on Adjustment of Value-Added Tax Rates, or Circular 32, according to which (i) for VAT taxable sales acts or
importation of goods originally subject to value-added tax rates of 17% and 11% respectively, such tax rates shall be
adjusted to 16% and 10%, respectively; (ii) for purchase of agricultural products originally subject to deduction rate of
11%, such deduction rate shall be adjusted to 10%; (iii) for purchase of agricultural products for the purpose of production
and sales or consigned processing of goods subject to tax rate of 16%, such tax shall be calculated at the deduction rate of
12%; (iv) for exported goods originally subject to tax rate of 17% and export tax refund rate of 17%, the export tax refund
rate shall be adjusted to 16%; and (v) for exported goods and cross-border taxable acts originally subject to tax rate of 11%
and export tax refund rate of 11%, the export tax refund rate shall be adjusted to 10%. Circular 32 became effective on
May 1, 2018 and shall supersede existing provisions which are inconsistent with Circular 32.
79
Table of Contents
In March 2019, MOF, SAT and the General Administration of Customs jointly issued the Notice on Measures to
Implement the Reform on Value-Added Tax, which came into effect on April 1, 2019. According to the above-mentioned
notice, starting from April 1, 2019, taxable sales acts or importation of goods originally subject to value-added tax rates of
16% and 10%, respectively, become subject to lower value-added tax rates of 13% and 9%, respectively. No change of
value-added tax rates has been made with respect to our services.
Regulations Relating to Dividend Distributions
The principal regulations governing the distribution of dividends paid by wholly foreign-owned enterprises include the
Wholly Foreign-Owned Enterprise Law and the Implementation Regulations on the Wholly Foreign-Owned Enterprise
Law. Under these regulations, wholly foreign-owned enterprises in China may pay dividends only out of their accumulated
profits, if any, as determined in accordance with PRC accounting standards and regulations. In addition, a wholly foreign-
owned enterprise in China is required to set aside at least 10% of its after-tax profit based on PRC accounting standards
each year to its general reserves until its cumulative total reserve funds reaches 50% of its registered capital. These reserve
funds, however, may not be distributed as cash dividends.
Regulations Relating to Foreign Exchange
Regulations Relating to Foreign Exchange Registration of Overseas Investment by PRC Residents
Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic Residents’ Offshore Investment and
Financing and Roundtrip Investment Through Special Purpose Vehicles, or Circular 37, issued by SAFE in and effective
July 2014, regulates foreign exchange matters in relation to the use of special purpose vehicles, or SPVs, by PRC residents
or entities to seek offshore investment and financing and conduct round trip investment in China. Under Circular 37, a SPV
refers to an offshore entity established or controlled, directly or indirectly, by PRC residents or entities for the purpose of
seeking offshore financing or making offshore investment, using legitimate domestic or offshore assets or interests, while
“round trip investment” refers to the direct investment in China by PRC residents or entities through SPVs, namely,
establishing foreign-invested enterprises to obtain the ownership, control rights and management rights. Circular 37
requires that, before making contribution into an SPV, PRC residents or entities are required to complete foreign exchange
registration with SAFE or its local branch. Circular 37 further provides that option or share-based incentive holders of a
non-listed SPV can exercise the options or share incentive grants to become a shareholder of such non-listed SPV, subject
to registration with SAFE or its local branch.
PRC residents or entities who have contributed domestic or offshore interests or assets to SPVs but have yet to obtain
SAFE registration before the implementation of the Circular 37 shall register their ownership interests or control in such
SPVs with SAFE or its local branch. An amendment to the registration is required if there is a material change in the
registered SPV, such as any change of basic information (including change of such PRC resident’s name and operation
term), increases or decreases in investment amounts, transfers or exchanges of shares, or mergers or divisions. Failure to
comply with the registration procedures set forth in Circular 37, or making misrepresentation or failure to disclose
controllers of foreign-invested enterprise that is established through round-trip investment, may result in restrictions on the
foreign exchange activities of the relevant foreign-invested enterprises, including payment of dividends and other
distributions, to its offshore parent or affiliate, and the capital inflow from the offshore parent, and may also subject
relevant PRC residents or entities to penalties under PRC foreign exchange administration regulations. In February 2015,
SAFE further promulgated the Circular on Further Simplifying and Improving the Administration of the Foreign Exchange
Concerning Direct Investment, or SAFE Circular 13. This SAFE Circular 13 has amended SAFE Circular 37 by requiring
PRC residents or entities to register with qualified banks rather than SAFE or its local branch in connection with their
establishment or control of an offshore entity established for the purpose of overseas investment or financing. Circular 37 is
applicable to our shareholders who are PRC residents and may be applicable to any offshore acquisitions that we make in
the future. All of our shareholders who, to our knowledge, are subject to the above SAFE regulations have completed the
necessary registrations with the local SAFE branch or qualified banks as required by SAFE Circular 37.
80
Table of Contents
In March 2015, SAFE promulgated the Circular on Reforming the Management Approach regarding the Settlement of
Foreign Exchange Capital of Foreign-invested Enterprises, or Circular 19. According to Circular 19, the foreign exchange
capital of foreign-invested enterprises shall be subject to the Discretional Foreign Exchange Settlement. The Discretional
Foreign Exchange Settlement refers to the foreign exchange capital in the capital account of a foreign-invested enterprise
for which the rights and interests of monetary contribution has been confirmed by the local foreign exchange bureau (or the
book-entry registration of monetary contribution by the banks), and this foreign exchange capital can be settled at the
banks based on the actual operational needs of the foreign-invested enterprise. The proportion of Discretional Foreign
Exchange Settlement of the foreign exchange capital of a foreign-invested enterprise is temporarily determined to be
100%.
SAFE issued the Circular on Reforming and Regulating Policies on the Control over Foreign Exchange Settlement of
Capital Accounts, or Circular 16. Pursuant to Circular 16, enterprises registered in the PRC may also convert their foreign
debts from foreign currency to Renminbi on a discretionary basis. Circular 16 provides an integrated standard for
conversion of foreign exchange under capital account items (including but not limited to foreign currency capital and
foreign debts) on a discretionary basis which applies to all enterprises registered in the PRC. Circular 16 reiterates the
principle that Renminbi converted from foreign currency-denominated capital of a company may not be directly or
indirectly used for purposes beyond its business scope or prohibited by PRC laws or regulations, and such converted
Renminbi shall not be provided as loans to its non-affiliated entities. As Circular 16 is newly issued, and SAFE has not
provided detailed guidelines with respect to its interpretation or implementations, it is uncertain how these rules will be
interpreted and implemented.
In January 2017, SAFE promulgated the Circular on Further Improving Reform of Foreign Exchange Administration
and Optimizing Genuineness and Compliance Verification, or Circular 3. Circular 3 sets out various measures to tighten
genuineness and compliance verification of cross-border transactions and cross-border capital flow, which include
requiring banks to verify board resolutions, tax filing form, and audited financial statements before wiring foreign invested
enterprises’ foreign exchange distribution above US$50,000, and strengthening genuineness and compliance verification of
foreign direct investments.
On October 23, 2019, SAFE promulgated the Notice of the Administration of Foreign Exchange on Further Promoting
the Convenience of Cross-Border Trade and Investment, which, among other things, non-investment foreign-invested
entities may use foreign exchange capital or Renminbi funds converted from the foreign exchange capital to make
domestic equity investments, provided that such investments should comply with the Negative List and other relevant PRC
laws and regulations.
Our PRC subsidiaries’ distributions to their offshore parents are required to comply with the requirements as described
above.
Regulations on Stock Incentive Plans
Pursuant to the Notice on Issues Concerning the Foreign Exchange Administration for Domestic Individuals
Participating in Stock Incentive Plan of Overseas Publicly Listed Company, or Circular 7, issued by SAFE in
February 2012, employees, directors, supervisors and other senior management participating in any stock incentive plan of
an overseas publicly listed company who are PRC citizens or who are non-PRC citizens residing in China for a continuous
period of not less than one year are generally required to register with SAFE through a domestic qualified agent. We and
our directors, executive officers and other employees who are PRC citizens or who reside in the PRC for a continuous
period of not less than one year and who have been granted options are subject to these regulations as our company is an
overseas-listed company. See “Item 3. Key Information—D. Risk Factors—Risks Related to Doing Business in China—
Any failure to comply with PRC regulations regarding the registration requirements for employee stock incentive plans
may subject the PRC plan participants or us to fines and other legal or administrative sanctions.”
81
Table of Contents
In addition, SAT has issued certain circulars concerning employee share options or restricted shares. Under these
circulars, the employees working in the PRC who exercise share options or are granted restricted shares will be subject to
PRC individual income tax. The PRC subsidiaries of such overseas listed company have obligations to file documents
related to employee share options or restricted shares with relevant tax authorities and to withhold individual income taxes
of those employees who exercise their share options. If the employees fail to pay or the PRC subsidiaries fail to withhold
their income taxes according to relevant laws and regulations, the PRC subsidiaries may face sanctions imposed by the tax
authorities or other PRC government authorities.
C. Organizational Structure
The following diagram illustrates our corporate structure, including our principal subsidiaries and our VIE and its
principal subsidiary, as of the date of this annual report:
82
Table of Contents
Note:
(1) Messrs. Lei Chen and Qin Sun are beneficiary owners of our company and hold 86.6% and 13.4% equity interests in
Hangzhou Aimi, respectively. They are employees of our company.
Contractual Arrangements with Our VIE and Its Shareholders
The following is a summary of the currently effective contractual arrangements by and among our wholly-owned
subsidiary, Hangzhou Weimi, our VIE and its shareholders. These contractual arrangements enable us to (i) exercise
effective control over our VIE; (ii) receive substantially all of the economic benefits of our VIE; and (iii) have an exclusive
option to purchase all or part of the equity interests in and assets of it when and to the extent permitted by PRC law.
Agreements that provide us effective control over our VIE
Shareholders’ Voting Rights Proxy Agreement. Pursuant to the shareholders’ voting rights proxy agreement entered
into on June 5, 2015, and amended and restated on September 23, 2019, by and among Hangzhou Weimi, Hangzhou Aimi
and the shareholders of Hangzhou Aimi, each shareholder of Hangzhou Aimi irrevocably authorized Hangzhou Weimi or
any person(s) designated by Hangzhou Weimi to exercise such shareholder’s rights in Hangzhou Aimi, including without
limitation, the power to participate in and vote at shareholder’s meetings, the power to nominate and appoint the directors,
senior management, the power to sell or transfer such shareholder’s equity interest in Hangzhou Aimi, the power to
propose to convene an extraordinary shareholders meeting, and other shareholders’ voting rights permitted by the Articles
of Association of Hangzhou Aimi. The shareholders’ voting rights proxy agreement remains irrevocable and continuously
valid from the date of execution so long as each shareholder remains as a shareholder of Hangzhou Aimi.
Equity Pledge Agreement. Pursuant to the equity pledge agreement entered into on June 5, 2015, and amended and
restated on September 23, 2019, by and among Hangzhou Weimi, Hangzhou Aimi and the shareholders of Hangzhou Aimi,
the shareholders of Hangzhou Aimi pledged all of their equity interests in Hangzhou Aimi to Hangzhou Weimi to
guarantee their and Hangzhou Aimi’s obligations under the contractual arrangements including the exclusive consulting
and services agreement, the exclusive option agreement and the shareholders’ voting rights proxy agreement and this
equity pledge agreement, as well as any loss incurred due to events of default defined therein and all expenses incurred by
Hangzhou Weimi in enforcing such obligations of Hangzhou Aimi or its shareholders. In the event of default defined
therein, upon written notice to the shareholders of Hangzhou Aimi, Hangzhou Weimi, as pledgee, will have the right to
dispose of the pledged equity interests in Hangzhou Aimi and priority in receiving the proceeds from such disposition. The
shareholders of Hangzhou Aimi agree that, without Hangzhou Weimi’s prior written approval, during the term of the equity
pledge agreement, they will not dispose of the pledged equity interests or create or allow any other encumbrance on the
pledged equity interests. We have completed the registration of the equity pledges with the relevant office of SAIC in
accordance with the PRC Property Rights Law.
Spousal Consent Letters. Pursuant to these letters, the spouses of Messrs. Lei Chen and Qin Sun unconditionally and
irrevocably agreed that the equity interest in Hangzhou Aimi held by them and registered in their names will be disposed of
pursuant to the equity interest pledge agreement, the exclusive option agreement and the shareholders’ voting rights proxy
agreement. Each of their spouses agreed not to assert any rights over the equity interest in Hangzhou Aimi held by their
respective spouses. In addition, in the event that any spouse obtains any equity interest in Hangzhou Aimi held by his or
her spouse for any reason, he or she agreed to be bound by the contractual arrangements.
83
Table of Contents
Agreements that allow us to receive economic benefits from our VIE
Exclusive Consulting and Services Agreement. Under the exclusive consulting and services agreement between
Hangzhou Weimi and Hangzhou Aimi, dated June 5, 2015, Hangzhou Weimi has the exclusive right to provide to
Hangzhou Aimi consulting and services related to, among other things, design and development, operation maintenance,
product consulting, and management and marketing consulting. Hangzhou Weimi has the exclusive ownership of
intellectual property rights created as a result of the performance of this agreement. Hangzhou Aimi agrees to pay
Hangzhou Weimi service fee at an amount as determined by Hangzhou Weimi. This agreement will remain effective for a
ten-year term and then be automatically renewed, unless Hangzhou Weimi gives Hangzhou Aimi a termination notice 90
days before the term ends.
Agreements that provide us with the option to purchase the equity interests in our VIE
Exclusive Option Agreement. Pursuant to the exclusive option agreement entered into on June 5, 2015, and amended
and restated on September 23, 2019, by and among Hangzhou Weimi, Hangzhou Aimi and each of the shareholders of
Hangzhou Aimi, each of the shareholders of Hangzhou Aimi irrevocably granted Hangzhou Weimi an exclusive call option
to purchase, or have its designated person(s) to purchase, at its discretion, all or part of their equity interests in Hangzhou
Aimi, and the purchase price shall be the lowest price permitted by applicable PRC law. In addition, Hangzhou Aimi has
granted Hangzhou Weimi an exclusive call option to purchase, or have its designated person(s) to purchase, at its
discretion, to the extent permitted under PRC law, all or part of Hangzhou Aimi’s assets at the book value of such assets, or
at the lowest price permitted by applicable PRC law, whichever is higher. Each of the shareholders of Hangzhou Aimi
undertakes that, without the prior written consent of Hangzhou Weimi or us, they may not increase or decrease the
registered capital, dispose of its assets, incur any debts or guarantee liabilities, enter into any material purchase agreements,
enter into any merger, acquisition or investments, amend its articles of association or provide any loans to third parties.
Unless terminated by Hangzhou Weimi at its sole discretion, the exclusive option agreement will remain effective until all
equity interests in Hangzhou Aimi held by the shareholders of Hangzhou Aimi and all assets of Hangzhou Aimi are
transferred or assigned to Hangzhou Weimi or its designated representatives.
In the opinion of King & Wood Mallesons, our PRC legal counsel:
● the ownership structures of Hangzhou Weimi and Hangzhou Aimi are not in any violation of PRC laws or
regulations currently in effect; and
● the contractual arrangements among Hangzhou Weimi and Hangzhou Aimi and its shareholders governed by PRC
law are legal, valid, binding and enforceable in accordance with its terms and applicable PRC laws, and do not
and will not result in any violation of PRC laws or regulations currently in effect.
However, we have been further advised by our PRC legal counsel that there are substantial uncertainties regarding the
interpretation and application of current and future PRC laws, regulations and rules. If the PRC government finds that the
agreements that establish the structure for operating our e-commerce business do not comply with PRC government
restrictions on foreign investment in our businesses, we could be subject to severe penalties including being prohibited
from continuing operations. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Corporate Structure—
If the PRC government finds that the agreements that establish the structure for operating some of our operations in China
do not comply with PRC regulations relating to the relevant industries, or if these regulations or the interpretation of
existing regulations change in the future, we could be subject to severe penalties or be forced to relinquish our interests in
those operations.”
D. Property, Plant and Equipment
Our principal executive offices are located on leased premises comprising approximately 51,952 square meters in
Shanghai, China. Our principal executive offices are leased from independent third parties, and we plan to renew our lease
from time to time as needed.
84
Table of Contents
Our servers are hosted in leased internet data centers in different geographic regions in China. We typically enter into
leasing and hosting service agreements with these internet data center providers that are renewed periodically. We believe
that our existing facilities are sufficient for our current needs, and we will obtain additional facilities, principally through
leasing, to accommodate our future expansion plans.
Item 4A. Unresolved Staff Comments
None.
Item 5. Operating and Financial Review and Prospects
You should read the following discussion and analysis of our financial condition and results of operations in
conjunction with our audited consolidated financial statements and the related notes included elsewhere in this annual
report. This discussion may contain forward-looking statements based upon current expectations that involve risks and
uncertainties. Our actual results may differ materially from those anticipated in these forward-looking statements as a result
of various factors, including those set forth under “Item 3. Key Information—D. Risk Factors” or in other parts of this
annual report on Form 20-F.
A. Operating Results
Key Factors Affecting Our Results of Operations
Our results of operations and financial conditions are affected by the general factors affecting China’s retail industry,
including China’s overall economic growth, the increase in per capita disposable income and the growth in consumer
spending in China. In addition, they are also affected by factors driving online retail in China, such as the growing number
of online shoppers, the improved logistics infrastructure and the increasing adoption of mobile payment. Unfavorable
changes in any of these general factors could materially and adversely affect our results of operations.
While our business is influenced by general factors affecting our industry, our results of operations are more directly
affected by certain company specific factors, including:
Our ability to attract and retain buyers and increase buyer activities
User experience is our utmost priority. Attracting, engaging and retaining buyers have been our key focuses since our
inception. We measure our effectiveness in attracting and retaining buyers through several key performance indicators,
including our active buyers, GMV, annual spending per active buyer and average monthly active users. During the twelve
months ended December 31, 2019, we have achieved 585.2 millions of active buyers, RMB1,006.6 billion (US$144.6
billion) of GMV, and RMB1,720.1 (US$247.1) of annual spending per active buyer. For the three months of October to
December of 2019, the average monthly active users on our platform was 481.5 million.
Our number of active buyers, annual spending per active buyer and average monthly active users have been increasing.
The increases have primarily been driven by the growing popularity and recognition of our brand and platform, the
consumer preferences for our innovative shopping experience, wide selection and attractive prices of merchandise offered
on our platform, and the positive impact of our promotional and marketing campaigns. As a result, our GMV has also
experienced significant growth.
Our ability to grow and retain our buyer base and increase buyer activities depends on our ability to continue to
provide value-for-money products and fun and interactive shopping experiences. We also plan to further leverage social
networks and word-of-mouth viral marketing, and conduct online and offline marketing and brand promotion activities to
attract new buyers and increase buyer activities. In addition, we plan to continue to encourage buyers to place more orders
with us through a variety of means, including granting coupons and holding special promotional events. As our business is
still at a growth phase and in light of our ability to develop a highly engaged buyer base, we expect continuing growth in
our buyer base and buyer activities.
85
Table of Contents
Our ability to establish and maintain relationships with merchants
In addition to the scale and engagement of active buyers, our growth is also driven by the scale of merchants on our
platform. In 2019, the number of active merchants on our platform reached 5.1 million. Merchants are attracted to our
platform by our large buyer base and scale of sales volume as well as targeted online marketing and other services provided
by us. The increase in the number of active merchants leads to more competitive prices and broader product categories
offered on our platform, which in turn helps us attract more buyers, generating powerful network effects.
Our ability to provide popular products on our platform at attractive prices also depends on our ability to maintain
mutually beneficial relationships with our merchants. For example, we rely on our merchants to make available sufficient
inventory and fulfill large volumes of orders in an efficient and timely manner to ensure our user experience. To date, our
buyers and merchants have been increasing in parallel as a result of the network effects of our platform.
Our ability to provide innovative online marketplace services and broaden service offerings
We currently generate revenues primarily from online marketplace services that we provide to merchants. We believe
that increasing the value and variety of our online marketplace services and the consequent return on investment to
merchants from utilizing these services will increase demand for our services. We aim to enhance the value of our online
marketplace services through such means as broadening our service offerings, increasing the size and engagement of our
buyer base, improving recommendation features, developing innovative marketing services, and improving the
measurement tools available to merchants. For example, we launched in November 2019 our livestreaming service Duo
Duo Live to offer an interactive, live forum for our merchants to engage directly with our users, showcase their products,
share their personal stories and build trust, all of which ultimately helps to generate sales and greater customer confidence.
Our ability to manage our costs and expenses by leveraging our scale of business
Our results of operations depend on our ability to manage our costs and expenses. We expect our costs and expenses to
continue to increase as we grow our business and attract more buyers and merchants to our platform. Our costs of revenues
currently consist primarily of payment processing fees, bandwidths and server costs, staff costs and other expenses directly
attributable to the online marketplace services. In addition, we have invested significantly in marketing activities to
promote our brand and our products and services. Our sales and marketing expenses increased from RMB1,344.6 million
in 2017 to RMB13,441.8 million in 2018, and further to RMB27,174.2 million (US$3,903.3 million) in 2019, while sales
and marketing expenses as a percentage of our revenues increased from 77.1% in 2017 to 102.5% in 2018, and down to
90.2% in 2019.
We believe our marketplace model has significant operating leverage and enables us to realize structural cost savings.
For example, due to our large buyer base, we are able to attract a large number of merchants, which in turn generates a
strong source of demand for our online marketing and other services for merchants. As our business further grows in scale,
we believe our massive scale, coupled with the network effects, will allow us to benefit from substantial economies of
scale. For example, the costs associated with the operation of our platform as well as our operating expenses do not
increase at the same pace as our GMV growth as we do not require a proportional increase in the size of our workforce to
support our growth. We achieve economies of scale in our operation as a wider selection of merchandise attracts a larger
number of buyers, which in turn drives an increase in the scale of our sales volume and attracts more merchants to our
platform. In addition, our scale creates value for our merchants by providing an effective channel for selling large volumes
of products and by offering them comprehensive data insights on buyer preferences and market demand. We believe this
value proposition will make our platform more attractive to merchants and further increase their sales and spending on our
platform. This business model also enables us to avoid the costs, risks and capital requirements associated with sourcing
merchandise or holding inventory. As our business further grows, we believe we will be able to take advantage of
economies of scale to further improve our operational efficiency over time.
86
Table of Contents
Impact of COVID-19 on Our Operations and Financial Performance
Substantially all of our revenues and workforce are concentrated in China. In response to the intensifying efforts to
contain the spread of COVID-19, the Chinese government took a number of actions, which included extending the Chinese
New Year holiday, quarantining individuals suspected of having COVID-19, asking residents in China to stay at home and
to avoid public gathering, among other things. COVID-19 has also resulted in temporary closure of many corporate offices,
retail stores, and manufacturing facilities and factories across China, and put significant strain on merchandise shipping and
delivery. Consequently, the COVID-19 outbreak may adversely affect our business operations, financial condition and
operating results for 2020, including but not limited to negative impact to our total revenues, and downward adjustments or
impairment to the our non-current assets.
There remain significant uncertainties surrounding the COVID-19 outbreak and its further development as a global
pandemic. Hence, the extent of the business disruption and the related impact on our financial results and outlook for 2020
cannot be reasonably estimated at this time.
As of December 31, 2019, we had cash and cash equivalents of RMB5,768.2 million (US$828.5 million) and short-
term investments of RMB35,288.8 million (US$5,068.9 million). Our short-term investments mainly include time deposits
and wealth management products in financial institutions, which are highly liquid. Subsequently, in April 2020, we raised
US$1.1 billion in net proceeds from the private placement of our Class A ordinary shares to certain long-term investors.
We believe this level of liquidity is sufficient to successfully navigate an extended period of uncertainty. See also “Risk
Factors—Risks Related to Our Business and Industry—We face risks related to natural disasters, health epidemics and
other outbreaks, which could significantly disrupt our operations.”
Key Line Items and Specific Factors Affecting Our Results of Operations
Revenues
We used to generate revenues from both online marketplace services and merchandise sales prior to 2018, and only
from online marketplace services from 2018 onwards. Revenues from online marketplace services further include revenues
from online marketing services and transaction services. The following table sets forth the components of our revenues by
amounts and percentages of our total revenues for the periods presented:
2017
RMB
%
For the Year Ended December 31,
2018
RMB
%
(in thousands, except for percentages)
RMB
2019
US$
%
Revenues:
Online marketplace services:
Online marketing services
Transaction services
Merchandise sales
1,209,275
531,416
3,385
69.3
30.5
0.2
11,515,575
1,604,415
—
87.8
12.2
—
26,813,641
3,328,245
—
3,851,539
478,072
—
89.0
11.0
—
Total revenues
1,744,076
100.0
13,119,990
100.0
30,141,886
4,329,611
100.0
Online marketplace services
Under our current business model, we generate revenues only from online marketplace services. Our revenues from
online marketplace services include revenues from online marketing services and transaction services.
Online marketing services. We provide online marketing services to allow merchants to bid for keywords that match
product listings appearing in search results on our platform and advertising placements such as banners, links and logos.
The placement and the price for such placement are determined through an online bidding system.
87
Table of Contents
Transaction services. We charge merchants fees for transaction-related services that we provide to merchants on our
platform. As part of our continued efforts to improve user experience, we reward merchants who sell high-quality products
and provide superb services with preferential fee rates.
Merchandise sales
From 2015 to the first quarter of 2017, we also operated an online direct sales business under the name of “Pinhaohuo”
for certain categories of merchandise such as fresh produce and other perishable products. Under this model, we acquired
products from suppliers and sold them directly to buyers. During the time when we operated Pinhaohuo, we also operated
our current marketplace model and completed the transition into our current business model in the first quarter of 2017. As
a result, we no longer generated such revenues after the first quarter of 2017.
Costs of revenues
The following table sets forth the components of our costs of revenues by amounts and percentages of costs of
revenues for the periods presented:
2017
RMB
%
For the Year Ended December 31,
2018
RMB
%
(in thousands, except for percentages)
RMB
2019
US$
%
Costs of revenues:
Costs of online marketplace services:
Payment processing fees
Costs associated with the operation of our
(541,320)
74.9
(639,290)
22.0
(341,879)
(49,107)
5.4
platform
Costs of merchandise sales
(178,458)
(3,052)
24.7
0.4
(2,265,959)
—
78.0
0.0
(5,996,899)
—
(861,401)
—
94.6
0.0
Total costs of revenues
(722,830)
100.0
(2,905,249)
100.0
(6,338,778)
(910,508)
100.0
Costs of online marketplace services consist primarily of payment processing fees paid to third party online payment
platforms, costs associated with the operation of our platform, such as bandwidths and server costs, amortization,
depreciation and maintenance costs, payroll, employee benefits and share-based compensation expenses, call center and
merchant support services, surcharges and other expenses directly attributable to the online marketplace services. Costs of
merchandise sales consist of the same elements as those of online marketplace services, as well as the purchase price of
merchandise, shipping and other logistics charges and write-down of inventories.
Operating expenses
The following table sets forth the components of our operating expenses by amounts and percentages of operating
expenses for the periods presented:
2017
RMB
%
For the Year Ended December 31,
2018
RMB
%
(in thousands, except for percentages)
RMB
2019
US$
%
Operating expenses:
Sales and marketing expenses
General and administrative
expenses
Research and development
expenses
Impairment of a long-term
investment
(1,344,582)
83.2
(13,441,813)
64.0
(27,174,249)
(3,903,337)
84.0
(133,207)
8.2
(6,456,612)
30.7
(1,296,712)
(186,261)
4.0
(129,181)
8.0
(1,116,057)
5.3
(3,870,358)
(555,942)
12.0
(10,000)
0.6
—
—
—
—
—
Total operating expenses
(1,616,970)
100.0
(21,014,482)
100.0
(32,341,319)
(4,645,540)
100.0
88
Table of Contents
Sales and marketing expenses. Sales and marketing expenses consist primarily of online and offline advertising,
promotion and coupon expenses, as well as payroll, employee benefits, share-based compensation expenses and other
related expenses associated with sales and marketing. We expect our sales and marketing expenses to increase in absolute
amounts in the foreseeable future as we seek to increase our brand awareness, enhance user engagement and build scale.
General and administrative expenses. General and administrative expenses consist primarily of payroll, employee
benefits, share-based compensation expenses and other related expenses. We expect our general and administrative
expenses to increase in absolute amounts in the foreseeable future due to the anticipated growth of our business as well as
accounting, insurance, investor relations and other public company costs.
Research and development expenses. Research and development expenses consist primarily of payroll, employee
benefits, share-based compensation expenses, R&D-related cloud services and other related expenses associated with
research and platform development. We expect our research and development expenses to increase as we expand our
research and development team to enhance our artificial intelligence technology and big data analytics capabilities and
develop new features and functionalities on our platform.
Taxation
Cayman Islands
The Cayman Islands currently levies no taxes on individuals or corporations based upon profits, income, gains or
appreciation and there is no taxation in the nature of inheritance tax or estate duty.
There are no other taxes likely to be material to us levied by the government of the Cayman Islands except for stamp
duties which may be applicable on instruments executed in, or brought within the jurisdiction of the Cayman Islands. There
are no exchange control regulations or currency restrictions in the Cayman Islands.
Payments of dividends and capital in respect of the shares will not be subject to taxation in the Cayman Islands and no
withholding will be required on the payment of a dividend or capital to any holder of the shares, nor will gains derived
from the disposal of the shares be subject to Cayman Islands income or corporation tax.
Hong Kong
Walnut HK is incorporated in Hong Kong and is subject to Hong Kong profits tax of 16.5% on its activities conducted
in Hong Kong and may be exempted for income tax on its foreign-derived income. There are no withholding taxes in Hong
Kong for distribution of dividends by a company incorporated in Hong Kong.
PRC
Generally, our PRC subsidiaries, VIEs and their subsidiaries are subject to enterprise income tax on their taxable
income in China at a statutory rate of 25%. The enterprise income tax is calculated based on the entity’s global income as
determined under PRC tax laws and accounting standards. Shanghai Xunmeng, a subsidiary of our VIE, was recognized as
a “high and new technology enterprise” in November 2018 and was eligible for a preferential tax rate of 15% from 2018 to
2020. In April 2018, Xinzhijiang, a subsidiary of ours located in Qianhai District, Shenzhen, Guangdong Province, was
eligible for a preferential tax rate of 15% and has been applying such preferential tax rate since then. The preferential tax
rate is available from 2014 and 2020 and is awarded to companies located in Qianhai District that operate in certain
encouraged industries.
We are subject to value-added tax at a rate of 16% before April 1, 2019 and 13% starting from April 1, 2019 on sales
and 6% on the services (research and development services, technology services, and/or information technology services),
in each case less any deductible value-added tax we have already paid or borne. We are also subject to surcharges on value-
added tax payments in accordance with PRC law.
89
Table of Contents
Dividends paid by our wholly foreign-owned subsidiary in China to our intermediary holding company in Hong Kong
will be subject to a withholding tax rate of 10%, unless the relevant Hong Kong entity satisfies all the requirements under
the Arrangement between China and the Hong Kong Special Administrative Region on the Avoidance of Double Taxation
and Prevention of Fiscal Evasion with respect to Taxes on Income and Capital and receives approval from the relevant tax
authority. If our Hong Kong subsidiary satisfies all the requirements under the tax arrangement and receives approval from
the relevant tax authority, then the dividends paid to the Hong Kong subsidiary would be subject to withholding tax at the
standard rate of 5%. Effective from November 1, 2015, the above mentioned approval requirement has been abolished, but
a Hong Kong entity is still required to file application package with the relevant tax authority, and settle the overdue taxes
if the preferential 5% tax rate is denied based on the subsequent review of the application package by the relevant tax
authority. See “Item 3. Key Information—D. Risk Factors—Risks Related to Doing Business in China—We may rely on
dividends and other distributions on equity paid by our PRC subsidiaries to fund any cash and financing requirements we
may have, and any limitation on the ability of our PRC subsidiaries to make payments to us could have a material and
adverse effect on our ability to conduct our business.”
If our holding company in the Cayman Islands or any of our subsidiaries outside of China were deemed to be a
“resident enterprise” under the PRC Enterprise Income Tax Law, it would be subject to enterprise income tax on its
worldwide income at a rate of 25%. See “Item 3. Key Information—D. Risk Factors—Risks Related to Doing Business in
China—If we are classified as a PRC resident enterprise for PRC income tax purposes, such classification could result in
unfavorable tax consequences to us and our non-PRC shareholders or ADS holders.”
Results of Operations
The following table sets forth a summary of our consolidated results of operations for the periods presented, both in
absolute amount and as a percentage of our revenues for the periods presented. This information should be read together
with our audited consolidated financial statements and related notes included elsewhere in this annual report. The results of
operations in any period are not necessarily indicative of our future trends.
90
Table of Contents
As disclosed in “Item 3. Key Information—A. Selected Financial Data”, due to the loss of the EGC status, we adopted
ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606), as amended, effective January 1, 2018 using the
modified retrospective approach. There were no changes made to our revenue recognition policy as a result of the adoption
of Topic 606. We also changed the classification and presentation of restricted cash on the consolidated statements of cash
flows for each of the three years in the period ended December 31, 2018 due to the adoption of ASU No. 2016-18,
Statement of Cash Flows: Restricted Cash. We adopted ASU No. 2016-02: Leases on January 1, 2019 using the modified
retrospective transition method. ROU assets and lease liabilities (including current and non-current) for operating leases are
presented on the face of the consolidated balance sheet as of December 31, 2019, while the consolidated balance sheet data
for the years ended December 31, 2016, 2017 and 2018 have been prepared in accordance with ASC Topic 840,
Accounting for Leases.
2017
RMB
%
For the Year Ended December 31,
2018
RMB
%
(in thousands, except for percentages)
RMB
2019
US$
%
1,740,691
3,385
99.8
0.2
1,744,076 100.0
13,119,990
—
13,119,990
100.0
—
100.0
30,141,886
—
30,141,886
4,329,611
—
4,329,611
100.0
—
100.0
(719,778)
(3,052)
(722,830)
1,021,246
(41.2)
(0.2)
(41.4)
58.6
(2,905,249)
—
(2,905,249)
10,214,741
(22.1)
—
(22.1)
77.9
(6,338,778)
—
(6,338,778)
23,803,108
(910,508)
—
(910,508)
3,419,103
(21.0)
—
(21.0)
79.0
(1,344,582)
(133,207)
(129,181)
(10,000)
(1,616,970)
(595,724)
(77.1) (13,441,813) (102.5)
(49.2)
(6,456,612)
(7.6)
(8.5)
(1,116,057)
(7.4)
(0.6)
—
—
(92.7) (21,014,482) (160.2)
(82.3)
(34.1) (10,799,741)
(27,174,249)
(1,296,712)
(3,870,358)
—
(32,341,319)
(8,538,211)
(3,903,337)
(186,261)
(555,942)
—
(4,645,540)
(1,226,437)
(90.2)
(4.3)
(12.8)
—
(107.3)
(28.3)
80,783
4.6
— —
(0.7)
0.1
(11,547)
1,373
584,940
—
10,037
(12,361)
4.5
—
0.1
(0.1)
1,541,825
(145,858)
63,179
82,786
221,469
(20,951)
9,075
11,891
5.1
(0.5)
0.2
0.3
(525,115)
—
—
(525,115)
(30.1) (10,217,125)
—
—
(30.1) (10,217,125)
—
—
(77.9)
—
—
(77.9)
(6,996,279)
28,676
—
(6,967,603)
(1,004,953)
4,119
—
(1,000,834)
(23.2)
0.1
—
(23.1)
Revenues
Online marketplace services
Merchandise sales
Total revenues
Costs of revenues(1)
Costs of online marketplace services
Costs of merchandise sales
Total costs of revenues
Gross profit
Operating expenses
Sales and marketing expenses(1)
General and administrative expenses(1)
Research and development expenses(1)
Impairment of a long-term investment
Total operating expenses
Operating loss
Other income/(expenses)
Interest and investment gain, net
Interest expense
Foreign exchange (loss)/gain
Other income/(loss), net
Loss before income tax and share of
results of equity investees
Share of results of equity investees
Income tax expenses
Net loss
Note:
(1) Share-based compensation expenses were allocated as follows:
For the Year Ended December 31,
2019
2017
RMB
2018
RMB
RMB
US$
Costs of revenues
Sales and marketing expenses
General and administrative expenses
Research and development expenses
Total
(in thousands)
796
1,675
108,141
5,893
116,505
3,488
405,805
6,296,186
136,094
6,841,573
23,835
860,862
786,641
886,368
2,557,706
3,424
123,655
112,994
127,319
367,392
91
Table of Contents
Year ended December 31, 2019 compared to year ended December 31, 2018
Revenues
Our revenues, which only consist of revenues from online marketplace services from 2018 onward, increased by
129.7% from RMB13,120.0 million in 2018 to RMB30,141.9 million (US$4,329.6 million) in 2019, primarily attributable
to strong growth of revenues from online marketing services. Revenues from online marketing services increased from
RMB11,515.6 million in 2018 to RMB26,813.6 million (US$3,851.5 million) in 2019. This increase was primarily
attributable to our stronger brand and market position as a result of our branding campaigns, more active merchants
offering greater breadth of products and the significant increase in the number of our active buyers and annual spending per
active buyer. Revenues from transaction services increased from RMB1,604.4 million in 2018 to RMB3,328.2 million
(US$478.1 million) in 2019, primarily due to the increase in GMV.
Costs of revenues
Our costs of revenues, which only consist of costs of online marketplace services from 2018 onward, increased by
118.2% from RMB2,905.2 million in 2018 to RMB6,338.8 million (US$910.5 million) in 2019, primarily due to increases
in bandwidths and server costs, staff costs and other expenses directly attributable to the online marketplace services,
partially offset by rebates of payment processing fees. The increase in bandwidths and server costs from RMB578.9 million
in 2018 to RMB1,496.9 million (US$215.0 million) in 2019 was due to the increase in server capacity to keep pace with
the growth of our online marketplace services. The increase in staff costs from RMB116.4 million in 2018 to RMB286.2
million (US$41.1 million) in 2019 was primarily due to the increase of annual average headcount for employees dedicated
to the operations of our platform. The increase in other expenses directly attributable to the online marketplace services
was primarily due to the higher costs of call center and merchant support services from RMB991.6 million in 2018 to
RMB3,093.8 million (US$444.4 million) in 2019. The decrease in payment processing fees from RMB639.3 million in
2018 to RMB341.9 million (US$49.1 million) in 2019 was primarily attributable to payment rebate received relating to
processing fees.
Gross profit
As a result of the foregoing, our gross profit increased to RMB23,803.1 million (US$3,419.1 million) in 2019, from
RMB10,214.7 million in 2018. The improvement was primarily attributable to the continued growth in revenues and
increased economies of scale achieved through our current marketplace model.
Operating expenses
Our total operating expenses increased by 53.9% from RMB21,014.5 million in 2018 to RMB32,341.3 million
(US$4,645.5 million) in 2019 due to the increases in sales and marketing expenses and research and development
expenses.
Sales and marketing expenses. Our sales and marketing expenses increased substantially from RMB13,441.8 million
in 2018 to RMB27,174.2 million (US$3,903.3 million) in 2019, primarily attributable to increases of RMB12,999.9 million
(US$1,867.3 million) in advertising expenses and promotion and coupon expenses. The increase in advertising expenses
and promotion and coupon expenses were focused on building our brand awareness and driving user growth and
engagement on our platform.
General and administrative expenses. Our general and administrative expenses decreased substantially from
RMB6,456.6 million in 2018 to RMB1,296.7 million (US$186.3 million) in 2019. The decrease was primarily attributable
to a one-time share-based compensation expense recorded in April, 2018.
92
Table of Contents
Research and development expenses. Our research and development expenses increased substantially from
RMB1,116.1 million in 2018 to RMB3,870.4 million (US$555.9 million) in 2019, primarily due to an increase of
RMB2,037.1 million in staff costs and an increase of RMB649.6 million in R&D-related cloud services expenses. The
increase in staff costs was primarily attributable to the increase in headcount for our research and development personnel,
as we hired additional experienced research and development personnel to execute our technology-related strategies of
improving our platform.
Operating loss
As a result of the foregoing, we incurred operating loss of RMB10,799.7 million and RMB8,538.2 million
(US$1,226.4 million) in 2018 and 2019, respectively.
Other income/(expenses)
Interest and investment gain, net. Net interest and investment gain mainly represents interest earned on demand
deposits, time deposits and wealth management products in financial institutions. We had net interest and investment gain
of RMB584.9 million and RMB1,541.8 million (US$221.5 million) in 2018 and 2019, respectively. The increase was
primarily attributable to the increase of our short-term investments and cash balance.
Interest expense. We had interest expense of RMB145.9 million (US$21.0 million) in 2019, compared to interest
expense of nil in 2018, primarily due to interest expenses of RMB144.1 million (US$20.7 million) related to the
convertible bonds’ amortization to face value.
Foreign exchange gain. We had foreign exchange gain of RMB63.2 million (US$9.1 million) in 2019, compared to
foreign exchange gain of RMB10.0 million in 2018, primarily due to the depreciation of Renminbi against the U.S. dollar.
Other (loss)/income, net. We had other net income of RMB82.8 million (US$11.9 million) in 2019, compared to other
net loss of RMB12.4 million in 2018, primarily due to the tax benefit available under the Notice on Measures to Implement
the Reform on Value-Added Tax, which came into effect on April 1, 2019.
Income tax expenses
We recorded nil in income tax expenses in 2018 and 2019.
Share of results of equity investees
We had share of results of equity investees of RMB28.7 million (US$4.1 million) in 2019, compared to nil in 2018.
Net loss
As a result of the foregoing, we incurred net loss of RMB6,967.6 million (US$1,000.8 million) in 2019, compared to
net loss of RMB10,217.1 million in 2018.
Year ended December 31, 2018 compared to year ended December 31, 2017
Revenues
Our revenues, which consisted of revenues from both online marketplace services and merchandise sales prior to 2017
while only online marketplace services revenue from 2018 onward, increased substantially from RMB1,744.1 million in
2017 to RMB13,120.0 million in 2018. This increase was primarily attributable to increases in revenues from online
marketplace services.
93
Table of Contents
Our revenues from online marketplace services increased substantially from RMB1,740.7 million in 2017 to
RMB13,120.0 million in 2018, primarily attributable to strong growth of revenues from online marketing services.
Revenues from online marketing services increased from RMB1,209.3 million in 2017 to RMB11,515.6 million in 2018.
This increase was primarily attributable to the launch of our online marketing system in April 2017 and our stronger brand
and market position as a result of our branding campaigns, and the significant increase in the number of our active buyers
and annual spending per active buyer. Revenues from transaction services increased from RMB531.4 million in 2017 to
RMB1,604.4 million in 2018, primarily due to the increase in GMV.
Our revenues from merchandise sales decreased from RMB3.4 million in 2017 to nil in 2018 as we no longer
generated such revenues after the first quarter of 2017 due to change of business model.
Costs of revenues
Our costs of revenues, which consist of costs of online marketplace services and costs of merchandise sales prior to
2017 while only cost of online marketplace services from 2018 onward, increased by 301.9% from RMB722.8 million in
2017 to RMB2,905.2 million in 2018. This increase was primarily due to the increase in our costs of online marketplace
services.
Our costs of online marketplace services increased substantially from RMB719.8 million in 2017 to RMB2,905.2
million in 2018, primarily due to increases in payment processing fees, bandwidths and server costs, staff costs and other
expenses directly attributable to the online marketplace services. The increase in payment processing fees from RMB541.3
million in 2017 to RMB639.3 million in 2018 was primarily attributable to and in line with the substantial increase in
GMV. The increase in bandwidths and server costs from RMB117.5 million in 2017 to RMB578.9 million in 2018 was due
to the increase in server capacity to keep pace with the growth of our online marketplace services. The increase in staff
costs was primarily due to the increase in headcount for employees dedicated to the operations of our platform. The
increase in other expenses directly attributable to the online marketplace services was primarily due to the higher costs of
call center and merchant support services.
Our costs of merchandise sales decreased substantially from RMB3.1 million in 2017 to nil in 2018 as we no longer
operated the online direct sales business after the first quarter of 2017.
Gross profit
As a result of the foregoing, our gross profit increased to RMB10,214.7 million in 2018, from RMB1,021.2 million in
2017. The improvement was primarily attributable to the continued growth in revenues and increased economies of scale
achieved through our current marketplace model.
Operating expenses
Our total operating expenses increased substantially from RMB1,617.0 million in 2017 to RMB21,014.5 million in
2018 as all components of operating expenses increased.
Sales and marketing expenses. Our sales and marketing expenses increased substantially from RMB1,344.6 million in
2017 to RMB13,441.8 million in 2018, primarily attributable to increases of RMB11,608.2 million in advertising expenses
and promotion and coupon expenses. The increase in advertising expenses and promotion and coupon expenses were
focused on building our brand awareness and driving user growth and engagement on our platform.
General and administrative expenses. Our general and administrative expenses increased substantially from
RMB133.2 million in 2017 to RMB6,456.6 million in 2018. The increase was primarily attributable to an increase of
RMB6,278.1 million in staff costs due to the increase in share-based compensation expenses and headcount for our general
and administrative personnel.
94
Table of Contents
Research and development expenses. Our research and development expenses increased substantially from RMB129.2
million in 2017 to RMB1,116.1 million in 2018, primarily due to an increase of RMB735.1 million in staff costs and an
increase of RMB223.7 million in R&D-related cloud services expenses. The increase in staff costs was primarily
attributable to the increase in headcount for our research and development personnel, as we hired additional experienced
research and development personnel to execute our technology-related strategies of improving our platform.
Operating loss
As a result of the foregoing, we incurred operating loss of RMB595.7 million and RMB10,799.7 million in 2017 and
2018, respectively.
Other income/(expenses)
Interest and investment gain, net. Net interest and investment gain represents interest earned on cash deposits in
financial institutions. We had net interest and investment gain of RMB80.8 million and RMB584.9 million in 2017 and
2018, respectively. The increase was primarily attributable to the increase of our cash balance.
Foreign exchange gain/(loss). We had foreign exchange gain of RMB10.0 million in 2018, compared to foreign
exchange loss of RMB11.5 million in 2017, primarily due to the depreciation of Renminbi against the U.S. dollar.
Other (loss)/income, net. We had other net loss of RMB12.4 million in 2018, compared to other net income of
RMB1.4 million in 2017, primarily due to decrease of donation.
Income tax expenses
We recorded nil in income tax expenses in 2017 and 2018.
Net loss
As a result of the foregoing, we incurred net loss of RMB10,217.1 million in 2018, compared to net loss of RMB525.1
million in 2017.
Critical Accounting Policies
The Jumpstart Our Business Startups Act (“JOBS Act”) provides that an emerging growth company (“EGC”) as
defined therein can take advantage of an extended transition period for complying with new or revised accounting
standards. This allows an EGC to delay adoption of certain accounting standards until those standards would otherwise
apply to private companies. The Company as an EGC elected to take advantage of the extended transition period. However,
the Company ceased to be an EGC on December 31, 2018 due to its rapid revenue growth in 2018.
An accounting policy is considered critical if it requires an accounting estimate to be made based on assumptions
about matters that are highly uncertain at the time such estimate is made, and if different accounting estimates that
reasonably could have been used, or changes in the accounting estimates that are reasonably likely to occur periodically,
could materially impact the consolidated financial statements.
We prepare our financial statements in conformity with U.S. GAAP, which requires us to make judgments, estimates
and assumptions. We continually evaluate these estimates and assumptions based on the most recently available
information, our own historical experiences and various other assumptions that we believe to be reasonable under the
circumstances. Since the use of estimates is an integral component of the financial reporting process, actual results could
differ from our expectations as a result of changes in our estimates. Some of our accounting policies require a higher
degree of judgment than others in their application and require us to make significant accounting estimates.
95
Table of Contents
The following descriptions of critical accounting policies, judgments and estimates should be read in conjunction with
our consolidated financial statements and accompanying notes and other disclosures included in this annual report. When
reviewing our financial statements, you should consider (i) our selection of critical accounting policies, (ii) the judgments
and other uncertainties affecting the application of such policies, and (iii) the sensitivity of reported results to changes in
conditions and assumptions.
Revenue recognition
We through our platform primarily offer online marketplace services that enable third-party merchants to sell their
products to consumers in China. Revenues from marketplace services consist of online marketing services revenues and
transaction services revenues. Prior to 2017, we were primarily engaged in the online merchandise sales of fresh produce
and other perishable products sourced from produce suppliers. Payments for services or goods were generally received
before delivery.
Effective January 1, 2018, we adopted ASU 2014-09, Revenue from Contracts with Customers (Topic 606), using the
modified retrospective method applying to those contracts not yet completed as of January 1, 2018. There were no changes
made to our revenue recognition policy as a result of the adoption of Topic 606. Under Topic 606, revenues are recognized
when control of the promised services are transferred to customers in amounts that reflect the consideration we expect to be
entitled to in exchange for those services. We also evaluate whether it is appropriate to record the gross amounts of goods
and services sold and the related costs, or the net amounts earned as commissions.
We present value-added taxes (“VAT”) as reductions of revenues.
Online marketplace services
We charge transaction services fees to merchants for sales transactions completed on our online marketplace, where we
do not take control of the products provided by the merchants at any point in the time during the transactions and do not
have latitude over pricing of the merchandise. Merchants are charged transaction services fees primarily based on certain
percentage of the value of merchandise being sold by the merchants with preferential rates rewarded to certain merchants at
our discretion from time to time. Revenues related to transaction services are recognized in the consolidated statements of
comprehensive loss at the time when our service obligations to the merchants are determined to have been completed under
each sales transaction upon the consumers’ confirming the receipts of goods. Transaction services fees are not refundable if
and when consumers return the merchandise to merchants.
We also entered into contractual agreements with certain merchants to provide online marketing services on our
marketplace for which we receive service fees from merchants. Online marketing services allow merchants to bid for
keywords that match product listings appearing in search or browser results on our marketplace. Merchants prepay for
online marketing services that are charged on a cost-per-click basis. We provide the online marketing services on our own
platforms without involvement of any other party. Under ASC 606, the related revenues are recognized at a point of time
when consumers click the merchants’ product listings when services are completed by us for the merchants. The
positioning of such listings and the price for such positioning are determined through an online auction system, which
facilitates price discovery through a market-based mechanism.
We provide sales incentives to certain merchants that entitle them to receive price reduction on the online marketplace
services by meeting certain requirements. We net the sales incentives against online marketplace services revenues.
96
Table of Contents
In order to promote its online marketplace and attract more registered consumers, we offer various forms of incentives
such as coupons, credits and discounts that are not specific to any merchant, to consumers that are not customers of us.
Evaluation of the varying features of different incentive programs were made to determine that incentives offered to
consumers are generally not considered as payments to customers. Such evaluation included the consideration of whether
the incentives represent implicit obligation to consumers on behalf of merchants and if so, whether the consumers would be
considered as our customers.
Coupons and credits redeemable for coupons can only be used for future purchases of eligible merchandise offered on
our online marketplace to reduce purchase price. As the consumers are required to make future purchases of the merchants’
merchandise to redeem the coupons, we recognize the amounts of redeemed coupons primarily as marketing expenses
when future purchases are made. Discounts provided to consumers are recognized as marketing expenses when the related
transaction services revenues are recognized.
During the year ended December 31, 2018 and 2019, we also issued to consumers at our discretion cash redeemable
credits upon their completion of certain actions unrelated to the purchases of any specific merchant products on our online
marketplace. As the credits were redeemable for cash, we accrue for the related costs in marketing expenses based on the
cash redemption value of each credit as it is issued, assuming all credits will be redeemed. As of December 31, 2018 and
2019, the amount of outstanding credits was immaterial.
Merchandise sales
When we conduct online merchandise sales of fresh produce and other perishable products, we are primarily obligated
for the merchandise sold to the customers, subject to inventory risk, have latitude in establishing prices and selecting
suppliers. Revenues from merchandise sales are recorded on the gross basis when the customers confirm the receipts of
goods. Proceeds received in advance of customer acceptance are recorded as current liabilities in customer advances. We
have ceased to conduct online merchandise sales in first quarter of 2017.
Income taxes
We follow the liability method of accounting for income taxes in accordance with ASC 740, Income Taxes, or ASC
740. Under this method, deferred tax assets and liabilities are determined based on the difference between the financial
reporting and tax bases of assets and liabilities using enacted tax rates that will be in effect in the period in which the
differences are expected to reverse. We record a valuation allowance to offset deferred tax assets if based on the weight of
available evidence, it is more-likely-than-not that some portion, or all, of the deferred tax assets will not be realized. The
effect on deferred taxes of a change in tax rate is recognized in tax expense in the period that includes the enactment date of
the change in tax rate.
We accounted for uncertainties in income taxes in accordance with ASC 740. Interest and penalties related to
unrecognized tax benefit recognized in accordance with ASC 740 are classified in the consolidated statements of
comprehensive loss as income tax expense.
Measurement of share-based compensation
We adopted a global share incentive plan in 2015, which we refer to as the 2015 Plan in this annual report, for the
purpose of granting share-based compensation awards to employees, directors and consultants to incentivize their
performance and align their interests with ours. As of December 31, 2019, the maximum aggregate number of ordinary
shares which may be issued pursuant to all options granted under the 2015 Plan was 581,972,860 Class A ordinary shares,
subject to adjustment and amendment.
97
Table of Contents
In July 2018, our shareholders and board of directors adopted the 2018 Share Incentive Plan, which we refer to as the
2018 Plan in this annual report, to attract and retain the best available personnel, provide additional incentives to
employees, directors and consultants and promote the success of our business. The maximum aggregate number of shares
which may be issued pursuant to all awards under the 2018 Plan was initially 363,130,400, plus an annual increase on the
first day of each fiscal year of our company during the term of the 2018 Plan commencing with the fiscal year beginning
January 1, 2019, by an amount equal to the lessor of (i) 1.0% of the total number of shares issued and outstanding on the
last day of the immediately preceding fiscal year, and (ii) such number of shares as may be determined by our board of
directors. As of December 31, 2019, the maximum aggregate numbers of ordinary shares which may be issued pursuant to
all options and the restricted share units, RSUs, granted under the 2018 Plan were 116,348,240 and 41,375,068 Class A
ordinary shares, respectively, subject to adjustment and amendment.
Share-based payment transactions with employees were accounted for as equity awards and measured at their grant
date fair values. We recognize compensation expense over the requisite service period using the accelerated method. In
accordance with ASU No. 2016-09, Compensation-Stock Compensation (Topic 718): Improvement to Employee Share-
based Payment Accounting, we elected to account for forfeitures as they occurred.
Fair Value of the Options Granted to Employees
We apply ASC 718 (''ASC 718''), Compensation-Stock Compensation, to account for our employee share-based
payments. In accordance with ASC 718, we determine whether an award should be classified and accounted for as a
liability award or an equity award. All of our share-based awards to employees were classified as equity awards. We
measure the employee share-based compensation based on the fair value of the award at the grant date. Expense is
recognized using accelerated method over the requisite service period. The fair value of share options at the time of grant is
determined using the binomial-lattice option pricing model.
We recognized total share-based compensation expenses of RMB116.5 million, RMB6,841.6 million and RMB2,557.7
million (US$367.4 million), for the years ended December 31, 2017, 2018 and 2019, respectively.
As of December 31, 2019, total unrecognized share-based compensation expense relating to unvested awards was
RMB9,994.4 million (US$1,435.6 million). The expense is expected to be recognized over a weighted-average period of
4.83 years.
Recent Accounting Pronouncements
See Item 17 of Part III, “Financial Statements—Note 2—Summary of significant accounting policies—Recent
accounting pronouncements.”
98
Table of Contents
B. Liquidity and Capital Resources
The following table sets forth a summary of our cash flows for the periods presented:
Summary Consolidated Cash Flow Data:
Net cash generated from operating activities
Net cash generated from/(used in) investing activities
Net cash generated from financing activities
Exchange rate effect on cash, cash equivalents and restricted
cash
Net increase in cash, cash equivalents and restricted cash
Cash, cash equivalents and restricted cash at beginning of the
year(1)
Cash, cash equivalents and restricted cash at end of the year(1)
For the Year Ended December 31,
2017
RMB
2018
RMB
2019
RMB
US$
(in thousands)
9,686,328
71,651
1,398,860
7,767,927
(7,548,509)
17,344,357
14,820,976
(28,319,678)
15,854,731
2,128,900
(4,067,867)
2,277,390
(47,681)
11,109,158
546,910
18,110,685
450,142
2,806,171
64,659
403,082
1,319,843
12,429,001
12,429,001
30,539,686
30,539,686
33,345,857
4,386,751
4,789,833
(1) As we have ceased to be an “emerging growth company” as such term is defined in the JOBS Act, we adopted ASU
2016-18 effective as of January 1, 2018 on a retrospective basis to present restricted cash and restricted cash
equivalents as a part of the beginning and ending balances of cash and cash equivalents. For the year ended
December 31, 2017, the change in restricted cash of RMB9,370.8 million was previously reported within net cash used
in operating activities in the statements of cash flows.
To date, we have financed our operating and investing activities through cash generated by historical equity financing
activities. We also raised proceeds from the initial public offering of our ADSs in July 2018, a follow-on offering of our
ADSs in February 2019, and a convertible senior notes offering in September 2019. As of December 31, 2019, our cash
and cash equivalents were RMB5,768.2 million (US$828.5 million). Our cash and cash equivalents primarily consist of
cash at banks. As of the same date, we had restricted cash of RMB27,577.7 million (US$3,961.3 million), mainly
representing cash received from buyers and reserved in a bank supervised account for payments to merchants.
We believe that our current cash and cash equivalents and our anticipated cash flows from operations will be sufficient
to meet our anticipated working capital requirements and capital expenditures for at least the next 12 months. We may
decide to enhance our liquidity position or increase our cash reserve for future investments through additional equity and
debt financing. The issuance and sale of additional equity would result in further dilution to our shareholders. The
incurrence of indebtedness would result in an increase in fixed obligations and could result in operating covenants that
would restrict our operations. We cannot assure you that financing will be available in amounts or on terms acceptable to
us, if at all.
As of December 31, 2019, 55.5% of our cash and cash equivalents were held in China, and 48.8% were held by our
VIE and denominated in Renminbi. Although we consolidate the results of our VIE and its subsidiaries, we only have
access to the assets or earnings of our VIE and its subsidiaries through our contractual arrangements with our VIE and its
shareholders. See “Item 4. Information on the Company—C. Organizational Structure.” For restrictions and limitations on
liquidity and capital resources as a result of our corporate structure, see “Item 5. Operating and Financial Review and
Prospects—B. Liquidity and Capital Resources—Holding Company Structure.”
99
Table of Contents
In utilizing the proceeds we received from our public equity offerings, follow-on offering and convertible senior notes
offering, we may make additional capital contributions to our PRC subsidiaries, establish new PRC subsidiaries and make
capital contributions to these new PRC subsidiaries, make loans to our PRC subsidiaries, or acquire offshore entities with
operations in China in offshore transactions. However, most of these uses are subject to PRC regulations. See “Item 3. Key
Information—D. Risk Factors—Risks Related to Doing Business in China—PRC regulation of loans to and direct
investment in PRC entities by offshore holding companies and governmental control of currency conversion may delay or
prevent us from using the proceeds of our offshore financing to make loans or additional capital contributions to our PRC
subsidiaries, which could materially and adversely affect our liquidity and our ability to fund and expand our business.”
A majority of our future revenues are likely to continue to be in the form of Renminbi. Under existing PRC foreign
exchange regulations, Renminbi may be converted into foreign exchange for current account items, including profit
distributions, interest payments and trade- and service-related foreign exchange transactions, without prior SAFE approval
as long as certain routine procedural requirements are fulfilled. Therefore, our PRC subsidiaries are allowed to pay
dividends in foreign currencies to us without prior SAFE approval by following certain routine procedural requirements.
However, approval from or registration with competent government authorities is required where the Renminbi is to be
converted into foreign currency and remitted out of China to pay capital expenses such as the repayment of loans
denominated in foreign currencies. The PRC government may at its discretion restrict access to foreign currencies for
current account transactions in the future.
Operating activities
Net cash generated from operating activities in 2019 was RMB14,821.0 million (US$2,128.9 million), as compared to
net loss of RMB6,967.6 million (US$1,000.8 million) in the same period. The difference was primarily due to an increase
of RMB12,650.8 million (US$1,817.2 million) in payables to merchants, an increase of RMB3,652.6 million (US$524.7
million) in merchant deposits, an increase of RMB2,648.9 million (US$380.5 million) in accrued expenses and other
liabilities, and an increase of RMB1,024.8 million (US$147.2 million) in amounts due to related parties, partially offset by
an increase of RMB886.9 million (US$127.4 million) in amounts due from related parties and an increase of RMB803.4
million (US$115.4 million) in receivables from online payment platforms. The increase in payables to merchants, merchant
deposits and accrued expenses and other liabilities were attributable to our business expansion and the increase of number
of merchants on our platform. The principal non-cash items affecting the difference between our net loss and our net cash
generated from operating activities in 2019 were RMB2,557.7 million (US$367.4 million) in share-based compensation
expenses.
Net cash generated from operating activities in 2018 was RMB7,767.9 million, as compared to net loss of
RMB10,217.1 million in the same period. The difference was primarily due to an increase of RMB2,410.2 million in
merchant deposits, an increase of 7,437.4 million in payables to merchants, and an increase of 1,864.2 million in accrued
expenses and other liabilities, partially offset by an increase of RMB788.6 million in prepayments and other current assets.
The increase in merchant deposits, payables to merchants and accrued expenses and other liabilities were attributable to our
business expansion and the increase of number of merchants on our platform. The principal non-cash items affecting the
difference between our net loss and our net cash generated from operating activities in 2018 were RMB6,841.6 million in
share-based compensation expenses.
Net cash generated from operating activities in 2017 was RMB9,686.3 million, as compared to net loss of RMB525.1
million in the same period. The difference was primarily due to an increase of RMB8,721.7 million in payables to
merchants, an increase of RMB1,558.6 million in merchant deposits and an increase of RMB318.4 million in accrued
expenses and other liabilities. The increases in payables to merchants, merchant deposits and accrued expenses and other
liabilities were attributable to our business expansion and the increase of number of merchants on our platform due to the
transition of our business model. The principal non-cash items affecting the difference between our net loss and our net
cash generated from operating activities in 2017 were RMB13.4 million in share-based compensation expenses, RMB10.0
million in impairment of long-term investment and RMB2.3 million in depreciation.
100
Table of Contents
Investing activities
Net cash used in investing activities in 2019 was RMB28,319.7 million (US$4,067.9 million), primarily due to
purchase of short term investments of RMB52,451.6 million (US$7,534.2 million), partially offset by proceeds from sales
of short-term investments of RMB24,797.6 million (US$3,562.0 million).
Net cash used in investing activities in 2018 was RMB7,548.5 million, primarily due to purchase of short term
investments of RMB7,516.4 million, partially offset by repayment from a related party of RMB159.8 million.
Net cash generated from investing activities in 2017 was RMB71.7 million, primarily due to proceeds from sales of
short-term investments of RMB1,633.0 million, partially offset by purchase of short-term investments of RMB1,393.0
million and loan to a related party of RMB159.8 million.
Financing activities
Net cash generated from financing activities in 2019 was RMB15,854.7 million (US$2,277.4 million), primarily
attributable to proceeds from the follow-on offering, proceeds from issuance of convertible bonds, and proceeds from
short-term borrowings.
Net cash generated from financing activities in 2018 was RMB17,344.4 million, primarily attributable to proceeds
from the initial public offering of our ADSs and proceeds of our issuance of Series D preferred shares to investors.
Net cash generated from financing activities in 2017 was RMB1,398.9 million, primarily attributable to proceeds of
our issuance of Series C-1, Series C-2 and Series C-3 preferred shares to investors.
Holding Company Structure
Pinduoduo Inc. is a holding company with no material operations of its own. We conduct our operations primarily
through our PRC subsidiaries, our VIE and its subsidiaries in China. As a result, Pinduoduo Inc.’s ability to pay dividends
depends upon dividends paid by our PRC subsidiaries. If our existing PRC subsidiaries or any newly formed ones incur
debt on their own behalf in the future, the instruments governing their debt may restrict their ability to pay dividends to us.
In addition, our wholly foreign-owned subsidiaries in China are permitted to pay dividends to us only out of its retained
earnings, if any, as determined in accordance with PRC accounting standards and regulations. Under PRC law, each of our
subsidiaries and our VIE in China is required to set aside at least 10% of its after-tax profits each year, if any, to fund
certain statutory reserve funds until such reserve funds reach 50% of their registered capital. In addition, our wholly
foreign-owned subsidiaries in China may allocate a portion of their after-tax profits based on PRC accounting standards to
a staff welfare and bonus fund at their discretion. The statutory reserve funds and the discretionary funds are not
distributable as cash dividends. Remittance of dividends by a wholly foreign-owned company out of China is subject to
examination by the banks designated by SAFE. Our PRC subsidiaries have not paid dividends and will not be able to pay
dividends until they generate accumulated profits and meet the requirements for statutory reserve funds.
Capital expenditures
Our capital expenditures are primarily incurred for purchases of computer equipment relating to the operation of our
platform, furniture, office equipment and leasehold improvement for our office facilities and software. Our capital
expenditures were RMB8.9 million in 2017, RMB27.3 million in 2018 and RMB27.4 million (US$3.9 million) in 2019.
We intend to fund our future capital expenditures with our existing cash balance. We will continue to make capital
expenditures to meet the expected growth of our business.
C. Research and Development
See “Item 4. Information on the Company—B. Business Overview—Technology” and “Item 4. Information on the
Company—B. Business Overview—Intellectual Property.”
101
Table of Contents
D. Trend Information
Other than as disclosed elsewhere in this annual report, we are not aware of any trends, uncertainties, demands,
commitments or events for the year ended December 31, 2019 that are reasonably likely to have a material and adverse
effect on our net revenues, income, profitability, liquidity or capital resources, or that would cause the disclosed financial
information to be not necessarily indicative of future results of operations or financial conditions.
E. Off-Balance Sheet Arrangements
We have not entered into any financial guarantees or other commitments to guarantee the payment obligations of any
third parties. In addition, we have not entered into any derivative contracts that are indexed to our shares and classified as
shareholder’s equity or that are not reflected in our consolidated financial statements. Furthermore, we do not have any
retained or contingent interest in assets transferred to an unconsolidated entity that serves as credit, liquidity or market risk
support to such entity. We do not have any variable interest in any unconsolidated entity that provides financing, liquidity,
market risk or credit support to us or engages in leasing, hedging or product development services with us.
F. Tabular Disclosure of Contractual Obligations
The following table sets forth our contractual obligations as of December 31, 2019:
2020
2021
2022
2023
2024 and
after
Total
Operating lease commitments(1)
Investment commitments(2)
Total
Note:
142,058
150,231
128,731
N/A
N/A
N/A
142,058
150,231
128,731
94,598
N/A
94,598
97,558
613,176
N/A 111,389
724,565
97,558
(1) Operating lease commitments mainly represent our obligations for leasing office premises, which include all future
cash outflows under ASC Topic 842, Leases. Please see “Leases” under Note 8 to our audited consolidated financial
statements.
(2) Investment commitments primarily relate to capital contributions obligation under certain arrangement which does not
have contractual maturity date.
As disclosed in our consolidated financial statements included elsewhere in this annual report, we did not recognize
significant unrecognized tax benefits.
Other than as shown above, we did not have any significant capital and other commitments, long-term obligations or
guarantees as of December 31, 2019.
G. Safe Harbor
See “Forward-Looking Information”.
102
Table of Contents
Item 6. Directors, Senior Management and Employees
A. Directors and Senior Management
Pinduoduo Partnership
To ensure the sustainability and governance of our company and better align them with the interests of our
shareholders, our management has established an executive partnership, the Pinduoduo Partnership, to help us better
manage our business and to carry out our vision, mission and value continuously. The structure of the Pinduoduo
Partnership is designed to promote people with diverse skillsets but sharing the same core values and beliefs that we hold
dear.
The Pinduoduo Partnership will be operated under principles, policies and procedures that evolve with our business
and encompass the following major aspects:
Nomination and Election of Partners
Partners will be elected annually through a nomination process, whereby any existing partner may propose candidates
to the partnership committee (the “Partnership Committee”), which reviews the nomination and propose candidates to the
entire partnership for election. Election of new partners requires the affirmative vote of at least 75% of all the partners. In
order to be elected a partner, the partner candidate must meet certain quality standards including, among other things, a
high standard of personal character and integrity, continued service as a director, officer or employee with our company for
no less than five years (or a shorter period before our company reaches a five-year operating history), a consistent
commitment to our company’s mission, vision and values as well as a track record of contribution to our business.
In order to align the interests of partners with the interests of shareholders, the Partnership Committee may require a
partner to maintain a meaningful level of equity interests in our company during his or her tenure as a partner. The specific
level of equity interests to be maintained shall be determined by the Partnership Committee from time to time.
The Pinduoduo Partnership’s major rights and functions, such as its right to appoint the executive director to our board
and CEO nomination right, will not become effective until the Pinduoduo Partnership consists of no less than five limited
partners (the “Partnership Condition”). Currently, such rights and functions have yet to come into effect.
Partnership Committee
The Partnership Committee will be the primary management body of the Pinduoduo Partnership. The Partnership
Committee must consist of no more than five partners, and all decisions of the Partnership Committee will be made by
majority vote of the members.
Partnership Committee members serve for a term of three years and may serve multiple terms, unless terminated upon
his or her death, resignation, removal or termination of his or her membership in the partnership. Prior to each election that
takes place once every three years, the Partnership Committee will nominate a number of partners equal to the number of
Partnership Committee members plus three additional nominees. After voting, all except the three nominees who receive
the least votes from the partners are elected to the Partnership Committee.
The initial members of the Partnership Committee include Mr. Zheng Huang and Mr. Lei Chen.
Executive Director Appointment and CEO Nomination Right
The Pinduoduo Partnership will be entitled to appoint executive directors and nominate and recommend the chief
executive officer of the company.
103
Table of Contents
An executive director refers to the director of the company that is (i) neither a director who satisfies the
“independence” requirements of Rule 5605(a)(2) of the Nasdaq Stock Market Rules or Section 303A of the Corporate
Governance Rules of the New York Stock Exchange nor a director who is affiliated with or was appointed to our board by
a holder or a group of affiliated holders of preferred shares and/or Class A ordinary shares converted from preferred shares
of our company prior to our initial public offering, and (ii) maintains an employment relationship with our company.
Pursuant to our currently effective articles of association, our board of directors shall consist of not less than three but not
more than nine directors, and shall include (i) two executive directors, if there are no more than five directors, and (ii) three
executive directors, if there are more than five but no more than nine directors. The executive directors shall be nominated
by the Pinduoduo Partnership for so long as certain conditions are satisfied. Our board of directors is obligated to cause the
executive director candidate duly nominated by the Pinduoduo Partnership to be appointed by the board upon the delivery
by the Pinduoduo Partnership of a written notice (duly executed by the general partner of the Pinduoduo Partnership) to us,
and such executive director shall serve until expiry of his or her terms, unless removed by the shareholders by ordinary
resolutions in accordance with our articles of association, removed by the Pinduoduo Partnership or the office is vacated
upon, among other things, his or her death or resignation. Our board of directors may, by a majority of the remaining
directors present and voting at a board meeting, appoint any person as a director to fill vacancy on the board upon
resignation of a non-executive director member of the board. If at any time the total number of executive directors on the
board nominated by the Pinduoduo Partnership is less than two or three, as applicable based on the then board composition,
for any reason, the Pinduoduo Partnership shall be entitled to appoint such number of executive directors to the board as
may be necessary to ensure that the board includes the number of executive directors as required pursuant to our articles of
association. Such appointment of the executive directors to the board shall become effective immediately upon the delivery
by the Pinduoduo Partnership of a written notice to us, without the requirement for any further resolution, vote or approval
by the shareholders or the board. Mr. Zheng Huang is an executive director of our company.
The chief executive officer candidate nominated by the Pinduoduo Partnership shall stand for appointment by the
nominating and corporate governance committee of the board of directors. If the candidate is not appointed by the
nominating and corporate governance committee in accordance with our articles of association of the company, the
Pinduoduo Partnership may nominate a replacement nominee until the nominating and corporate governance committee
appoints such nominee as chief executive officer, or if the nominating and corporate governance committee fails to
appoint more than three candidiates nominated by the Pinduoduo Partnership consecutively, the board of directors may
then nominate and appoint any person to serve as the chief executive officer of the company in accordance with our articles
of association of the company.
Any partner may propose to the Partnership Committee any qualified individual to stand for nomination for executive
director or chief executive officer. The Partnership Committee shall select from the proposed individuals one or more
candidates for partnership approval. Nomination by the Pinduoduo Partnership of such candidate as the executive director
or chief executive officer, as applicable, shall require the affirmative votes of a majority of the partners.
Partner Termination, Retirement and Removal
Partners may elect to retire or withdraw from the Pinduoduo Partnership at any time. All partners are required to retire
upon reaching the age of sixty or upon termination of their employment. Any partner may be removed upon affirmative
vote of a majority of all partners, in the event that the Partnership Committee determines that such partner fails to meet any
of the qualifying standards and so recommend to the partnership.
Retired partners upon meeting certain requirements may be designated as honorary partners by the Partnership
Committee. Honorary partners may not act as partner, but may be entitled to allocations from the deferred portion of the
bonus pool.
Amendment of Partnership Agreement
Pursuant to the partnership agreement, amendment of the partnership agreement requires the approval of 75% of the
partners.
104
Table of Contents
Directors and Executive Officers
The following table sets forth information regarding our directors and executive officers as of the date of this annual
report.
Directors and Executive Officers
Zheng Huang
Haifeng Lin
Nanpeng Shen
Qi Lu
George Yong-Boon Yeo
Anthony Kam Ping Leung
Lei Chen
Zhenwei Zheng
Junyun Xiao
Age
Position/Title
40 Chairman of the Board of Directors and Chief Executive Officer
43 Director
52 Independent Director
58 Independent Director
65 Independent Director
59 Independent Director
40 Chief Technology Officer
36 Senior Vice President of Product Development
40 Senior Vice President of Operation
Zheng Huang is our founder and has served as the chairman of our board of directors and our chief executive officer
since our inception. Mr. Huang is a serial entrepreneur with significant experience and expertise in the technology and
internet sectors in China. Prior to founding our company, Mr. Huang founded Xinyoudi Studio in 2011 to develop and
operate online games. Prior to that, Mr. Huang founded Ouku.com, a company that operated an online B2C platform for
consumer electronics and home appliances, which was subsequently sold in 2010. Mr. Huang started his career at Google’s
(Nasdaq: GOOG) headquarters in 2004 as a software engineer and project manager. Mr. Huang subsequently relocated to
China and was part of the team that established Google China. Mr. Huang was trained as a data scientist and has published
numerous works on the subject of data mining, including in top peer reviewed journals, and presented his works in a
number of international conferences, such as the ACM SIGMOD Conference and International Conference on Machine
Learning. Mr. Huang received his bachelor’s degree in computer science from Zhejiang University and his master’s degree
in computer science with a focus on data mining from University of Wisconsin-Madison.
Haifeng Lin has served as our director since June 2017. Mr. Lin is currently the president of Tencent Financial
Technology, and a corporate vice president of Tencent Holdings Limited (HKEx: 00700). Prior to that, he served as general
manager of the merger and acquisitions department of Tencent Technology (Shenzhen) Company Limited, an affiliate of
Tencent Holdings. From July 2003 to November 2010, Mr. Lin served in different roles in finance, strategy and business
operation at Microsoft. Prior to that, Mr. Lin worked at Nokia China from 1999 to 2001. Mr. Lin received his bachelor’s
degree in engineering from Zhejiang University in June 1997 and his master’s degree in business administration from the
Wharton School of the University of Pennsylvania in June 2003.
Nanpeng Shen has served as our independent director since April 2018. Mr. Shen is the founding managing partner of
Sequoia Capital China. Prior to founding Sequoia Capital China, Mr. Shen co-founded Trip.com Group Ltd (Nasdaq:
TCOM), formerly Ctrip.com International, Ltd. (Nasdaq: CTRP), or Ctrip, a leading travel service provider in China, in
1999. Mr. Shen served as Ctrip’s president from August 2003 to October 2005 and as chief financial officer from 2000 to
October 2005. Mr. Shen also co-founded and served as non-executive Co-Chairman of Homeinns Hotel Group, a leading
economy hotel chain in China, which commenced operations in July 2002. Currently, Mr. Shen also serves as a director of
a number of public and private companies, including Ctrip, Noah Holdings Limited (NYSE: NOAH), Meituan Dianping
(HKEx: 03690) and China Renaissance Holdings Limited (HKEx: 01911). Mr. Shen received his bachelor’s degree from
Shanghai Jiao Tong University and his master’s degree from Yale University.
Qi Lu has served as our independent director and chairman of our compensation committee since July 2018. Currently,
he is the founding CEO of Miracle Plus. He was president and COO of Baidu, and prior to that served as Microsoft’s global
executive vice president and led Applications and Services Group. Dr. Lu joined Microsoft in 2009 as president of its
Online Services Division. Earlier in his career, Dr. Lu joined Yahoo! in 1998, later becoming senior vice president in
charge of search and advertising technologies, and subsequently executive vice president in 2007. Dr. Lu holds both
bachelor and master degrees in computer science from Fudan University in Shanghai and a Ph.D. in computer science from
Carnegie Mellon University. He holds over 40 US patents and has authored many papers in his field.
105
Table of Contents
George Yong-Boon Yeo has served as our independent director and chairman of our nominating and corporate
governance committee since July 2018. He currently serves as Senior Adviser to Kuok Group and is an independent non-
executive director of AIA Group Limited (HKEx: 01299). Prior to that, Mr. Yeo served 23 years in the government of
Singapore, and was Minister for Information and the Arts, Health, Trade & Industry, and Foreign Affairs of Singapore. Mr.
Yeo is also a member of the Board of Trustees of Berggruen Institute on Governance and International Advisory Panel of
Peking University, among others. Mr. Yeo studied Engineering at Cambridge University on a President’s Scholarship,
graduating with a Double First in 1976, and became a Signals Officer in the Singapore Armed Forces. After graduating
from the Singapore Command and Staff College in 1979, he was posted to the Republic of Singapore Air Force. Mr. Yeo
graduated with an MBA (Baker Scholar) from the Harvard Business School in 1985. He was appointed Chief-of-Staff of
the Air Staff from 1985 to 1986 and Director of Joint Operations and Planning in the Defence Ministry from 1985 to 1988,
attaining the rank of Brigadier-General.
Anthony Kam Ping Leung has served as our independent director and chairman of the audit committee since August
2019. Mr. Kam has more than 30 years of experience in the financial services industry in Asia. He is a Chartered Financial
Analyst and a chartered accountant in Singapore. Mr. Kam served as the deputy chief executive officer and the executive
director of HSBC Bank (China) Company Limited ("HSBC China") from February 2016 to April 2018 and served as the
chief financial officer of HSBC China from May 2013 to February 2016. Prior to that, Mr. Kam served as the chief
financial officer of HSBC Bank (Singapore) Limited from September 2005 to May 2013. Mr. Kam received bachelor of
science from University of Hong Kong and his master degree in applied finance from Macquarie University.
Lei Chen is a founding member of our company and has served as our chief technology officer since 2016, and our
director from February 2017 to July 2018. Prior to joining our company, Mr. Chen served as chief technology officer of
Xinyoudi Studio since 2011. Mr. Chen’s prior working experience includes internships with Google (Nasdaq: GOOG),
Yahoo Inc. and IBM (NYSE: IBM) in the United States. Mr. Chen was trained as a data scientist and is a prolific publisher
on the subject of data mining, and has presented his works in large international conferences, such as the ACM SIGMOD
Conference, Very Large Data Bases (VLDB) Conferences and International Conference on Machine Learning. Mr. Chen
received his bachelor’s degree in computer science from Tsinghua University and his doctoral degree in computer science
from University of Wisconsin-Madison.
Zhenwei Zheng is a founding member of our company and has served as our senior vice president of product
development since 2016, and our director from April 2018 to July 2018. Prior to joining our company, Mr. Zheng served as
chief executive officer of Xinyoudi Studio since 2011. Prior to that, he held various positions at Baidu (Nasdaq: BIDU)
from 2008 to 2010. Mr. Zheng received his bachelor’s degree and master’s degree in computer science from Zhejiang
University.
Junyun Xiao is a founding member of our company and has served as our senior vice president of operation since 2016
and our director from April 2018 to July 2018. Prior to joining our company, Mr. Xiao served as operation director of
Xinyoudi Studio since 2011. Prior to that, he was a member of the founding team of Ouku.com and served as operation
manager from 2007 to 2010.
B. Compensation
In the year ended December 31, 2019, we paid an aggregate of RMB5.0 million (US$0.7 million) in cash to our
directors and executive officers as a group. We have not set aside or accrued any amount to provide pension, retirement or
other similar benefits to our executive officers and directors. Our PRC subsidiaries and VIE are required by law to make
contributions equal to certain percentages of each employee’s salary for his or her medical insurance, maternity insurance,
workplace injury insurance, unemployment insurance, pension benefits through a PRC government-mandated multi-
employer defined contribution plan and other statutory benefits.
106
Table of Contents
Employment Agreements and Indemnification Agreements
We have entered into employment agreements with each of our executive officers. Under these agreements, each of
our executive officers is employed for a specified time period. We may terminate employment for cause, at any time,
without advance notice or remuneration, for certain acts of the executive officer, such as conviction or plea of guilty to a
felony or any crime involving moral turpitude, negligent or dishonest acts to our detriment, or misconduct or a failure to
perform agreed duties. We may also terminate an executive officer’s employment without cause upon three-month advance
written notice. In such case of termination by us, we will provide severance payments to the executive officer as expressly
required by applicable law of the jurisdiction where the executive officer is based. The executive officer may resign at any
time with a three-month advance written notice.
Each executive officer has agreed to hold, both during and after the termination or expiry of his or her employment
agreement, in strict confidence and not to use, except as required in the performance of his or her duties in connection with
the employment or pursuant to applicable law, any of our confidential information or trade secrets, any confidential
information or trade secrets of our clients or prospective clients, or the confidential or proprietary information of any third
party received by us and for which we have confidential obligations. The executive officers have also agreed to disclose in
confidence to us all inventions, designs and trade secrets which they conceive, develop or reduce to practice during the
executive officer’s employment with us and to assign all right, title and interest in them to us, and assist us in obtaining and
enforcing patents, copyrights and other legal rights for these inventions, designs and trade secrets.
In addition, each executive officer has agreed to be bound by non-competition and non-solicitation restrictions during
the term of his or her employment and typically for one year following the last date of employment. Specifically, each
executive officer has agreed not to (i) approach our suppliers, clients, customers or contacts or other persons or entities
introduced to the executive officer in his or her capacity as a representative of us for the purpose of doing business with
such persons or entities that will harm our business relationships with these persons or entities; (ii) assume employment
with or provide services to any of our competitors, or engage, whether as principal, partner, licensor or otherwise, any of
our competitors, without our express consent; or (iii) seek directly or indirectly, to solicit the services of any of our
employees who is employed by us on or after the date of the executive officer’s termination, or in the year preceding such
termination, without our express consent.
We have also entered into indemnification agreements with each of our directors and executive officers. Under these
agreements, we agree to indemnify our directors and executive officers against certain liabilities and expenses incurred by
such persons in connection with claims made by reason of their being a director or officer of our company.
2015 Global Share Plan
In September 2015, our board of directors approved a 2015 global share plan, which we refer to as the 2015 Plan, to
attract and retain the best available personnel, provide additional incentives to employees, directors and consultants and
promote the success of our business. The maximum aggregate number of ordinary shares which may be issued pursuant to
all awards under the 2015 Plan is 581,972,860 Class A ordinary shares, subject to adjustment and amendment. As of
December 31, 2019, options to purchase 581,972,860 Class A ordinary shares under the 2015 Plan had been granted and
outstanding, excluding awards that were forfeited or cancelled after the relevant grant dates.
The following paragraphs describe the principal terms of the 2015 Plan.
Types of awards. The 2015 Plan permits the awards of options or restricted shares.
Plan administration. Our board of directors or a committee of one or more members appointed by our board of
directors will administer the 2015 Plan. Subject to the terms of the 2015 Plan and in the case of the committee, the specific
duties delegated by our board of directors to the committee, the plan administrator has the authority to determine the
participants to receive awards, the type and number of awards to be granted to each participant, and the terms and
conditions of each award, among others.
107
Table of Contents
Award agreement. Awards granted under the 2015 Plan are evidenced by an award agreement that sets forth terms,
conditions and limitations for each award, which may include the term of the award, the provisions applicable in the event
that the grantee’s employment or service terminates, and our authority to unilaterally or bilaterally amend, modify, suspend,
cancel or rescind the award.
Eligibility. We may grant awards to our employees, directors and consultants of our company.
Vesting schedule. In general, the plan administrator determines the vesting schedule, which is specified in the relevant
award agreement.
Exercise of options. The plan administrator determines the exercise price for each award, which is stated in the award
agreement. The vested portion of option will expire if not exercised prior to the time as the plan administrator determines at
the time of its grant. However, the maximum exercisable term is ten years from the date of a grant.
Transfer restrictions. Awards may not be transferred in any manner by the participant other than in accordance with
the exceptions provided in the 2015 Plan, such as transfers by will or the laws of descent and distribution, or as provided in
the relevant award agreement or otherwise determined by the plan administrator.
Termination and amendment of the 2015 Plan. Unless terminated earlier, the 2015 Plan has a term of ten years. Our
board of directors has the authority to terminate, amend or modify the plan. No termination, amendment or modification
may adversely affect in any material way an outstanding award granted pursuant to the 2015 Plan unless mutually agreed
between the participant and the plan administrator.
2018 Share Incentive Plan
In July 2018, our shareholders and board of directors adopted the 2018 Share Incentive Plan, which we refer to as the
2018 Plan in this annual report, to attract and retain the best available personnel, provide additional incentives to
employees, directors and consultants and promote the success of our business. The maximum aggregate number of shares
which may be issued pursuant to all awards under the 2018 Plan was initially 363,130,400, plus an annual increase on the
first day of each fiscal year of our company during the term of the 2018 Plan commencing with the fiscal year beginning
January 1, 2019, by an amount equal to the lessor of (i) 1.0% of the total number of shares issued and outstanding on the
last day of the immediately preceding fiscal year, and (ii) such number of shares as may be determined by our board of
directors. As of December 31, 2019, options to purchase 116,348,240 Class A ordinary shares and restricted share units
representing 41,375,068 Class A ordinary shares had been granted and outstanding under the 2018 Plan.
The following paragraphs describe the principal terms of the 2018 Plan.
Types of Awards. The 2018 Plan permits the awards of options, restricted shares, restricted share units or any other
type of awards approved by the administration committee.
Plan Administration. Our board of directors or the administration committee will administer the 2018 Plan. The
administration committee or the full board of directors, as applicable, will determine the participants to receive awards, the
type and number of awards to be granted to each participant, and the terms and conditions of each award.
Award Agreement. Awards granted under the 2018 Plan are evidenced by an award agreement that sets forth terms,
conditions and limitations for each award, which may include the term of the award, the provisions applicable in the event
that the grantee’s employment or service terminates, and our authority to unilaterally or bilaterally amend, modify, suspend,
cancel or rescind the award.
Eligibility. We may grant awards to our employees, directors and consultants of our company. However, we may grant
options that are intended to qualify as incentive share options only to our employees and employees of our parent
companies and subsidiaries.
108
Table of Contents
Vesting Schedule. In general, the administration committee determines the vesting schedule, which is specified in the
relevant award agreement.
Exercise of Options. The administration committee determines the exercise price for each award, which is stated in the
award agreement. The vested portion of option will expire if not exercised prior to the time as the administration committee
determines at the time of its grant. However, the maximum exercisable term is ten years from the date of a grant.
Transfer Restrictions. Awards may not be transferred in any manner by the recipient other than in accordance with the
exceptions provided in the 2018 Plan, such as transfers by will or the laws of descent and distribution.
Termination and Amendment of the 2018 Plan. Unless terminated earlier, the 2018 Plan has a term of ten years. Our
board of directors has the authority to amend or terminate the plan. However, no such action may adversely affect in any
material way any awards previously granted unless agreed by the recipient.
The following table summarizes, as of December 31, 2019, the number of Class A ordinary shares under outstanding
options, restricted share units and other equity awards that we granted to our directors and executive officers, excluding
awards that were forfeited or cancelled after the relevant grant dates.
Name
George Yong-Boon Yeo
Qi Lu
Lei Chen
Zhenwei Zheng
Junyun Xiao
All directors and executive officers as a group
Class A
Ordinary Shares
Underlying
Equity Awards
Granted
*
*
*
*
*
Exercise Price
(US$/Share)
Nominal
Nominal
Nominal
Nominal
Nominal
54,690,040
Nominal
Date of Grant
February 1, 2019 and August 1, 2019
February 1, 2019 and August 1, 2019
September 1, 2016
Various dates from November 1, 2015 to
March 1, 2019
November 1, 2015 and September 1, 2016
Various dates from November 1, 2015 to
August 1, 2019
Date of Expiration
January 31, 2029 and July 31, 2029
January 31, 2029 and July 31, 2029
August 31, 2026
Various dates from October 31, 2025 to
February 28, 2029
October 31, 2025 and August 31, 2026
Various dates from October 31, 2025 to
July 31, 2029
* Less than 1% of our total ordinary shares outstanding.
As of December 31, 2019, our employees other than members of our senior management as a group held options to
purchase 643,721,100 Class A ordinary shares, with nominal exercise prices, and restricted share units representing
41,285,028 Class A ordinary shares.
For discussions of our accounting policies and estimates for awards granted pursuant to the 2015 Plan and 2018 Plan,
see “Item 5. Operating and Financial Review and Prospects—A. Operating Results—Critical Accounting Policies—
Measurement of share-based compensation.”
C. Board Practices
Board of Directors
Our board of directors consists of six directors. A director is not required to hold any shares in our company by way of
qualification. A director may vote with respect to any contract or transaction or proposed contract or transaction
notwithstanding that he may be interested therein provided (a) such director has declared the nature of his interest at the
earliest meeting of the board at which it is practicable for him to do so, either specifically or by way of a general notice and
(b) if such contract or arrangement is a transaction with a related party, such transaction has been approved by the audit
committee. The directors may from time to time at their discretion exercise all the powers of the company to raise or
borrow money, mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part
thereof, to issue debentures, debenture stock, bonds and other securities, whether outright or as collateral security for any
debt, liability or obligation of the company or of any third party. None of our non-executive directors has a service contract
with us that provides for benefits upon termination of service.
109
Table of Contents
Committees of the Board of Directors
A company of which more than 50% of the voting power is held by a single entity is considered a “controlled
company” under the Nasdaq Stock Market Rules. A controlled company is not required to comply with the Nasdaq
corporate governance rules requiring a board of directors to have a majority of independent directors, to have independent
compensation committee, and to have independent nominations/corporate governance committees. We are a “controlled
company” as defined under the Nasdaq Stock Market Rules. We have no current intention to rely on the controlled
company exemptions.
As a Cayman Islands exempted company listed on the Nasdaq Stock Market, we are subject to the Nasdaq corporate
governance listing standards. However, Nasdaq rules permit a foreign private issuer like us to follow the corporate
governance practices of its home country. Certain corporate governance practices in the Cayman Islands, which is our
home country, may differ significantly from the Nasdaq corporate governance listing standards. For example, neither the
Companies Law of the Cayman Islands nor our memorandum and articles of association requires a majority of our
directors to be independent, we could include non-independent directors as members of our compensation committee and
nominating committee, and our independent directors would not necessarily hold regularly scheduled meetings at which
only independent directors are present. However, we currently intend to comply with the rules of the Nasdaq in lieu of
following home country practice.
We have established three committees under the board of directors: an audit committee, a compensation committee
and a nominating and corporate governance committee. Each committee’s members and functions are described below.
Audit Committee. Our audit committee consists of Mr. Anthony Kam Ping Leung, Mr. Nanpeng Shen and Mr. George
Yong-Boon Yeo. Mr. Anthony Kam Ping Leung is the chairman of our audit committee. We have determined that Mr.
Anthony Kam Ping Leung, Mr. Nanpeng Shen and Mr. George Yong-Boon Yeo each satisfies the “independence”
requirements of Rule 5605(c)(2) of the Nasdaq Stock Market Rules and meet the independence standards under Rule 10A-
3 under the Exchange Act, as amended. We have determined that Mr. Anthony Kam Ping Leung qualifies as an “audit
committee financial expert.” The audit committee oversees our accounting and financial reporting processes and the audits
of the financial statements of our company. The audit committee is responsible for, among other things:
● appointing the independent auditors and pre-approving all auditing and non-auditing services permitted to be
performed by the independent auditors;
● reviewing with the independent auditors any audit problems or difficulties and management’s response;
● discussing the annual audited financial statements with management and the independent auditors;
● reviewing the adequacy and effectiveness of our accounting and internal control policies and procedures and any
steps taken to monitor and control major financial risk exposures;
● reviewing and approving all proposed related party transactions;
● meeting separately and periodically with management and the independent auditors; and
● monitoring compliance with our code of business conduct and ethics, including reviewing the adequacy and
effectiveness of our procedures to ensure proper compliance.
110
Table of Contents
Compensation Committee. Our compensation committee consists of Dr. Qi Lu and Mr. Nanpeng Shen. Dr. Qi Lu is the
chairman of our compensation committee. We have determined that Dr. Qi Lu and Mr. Nanpeng Shen each satisfies the
“independence” requirements of Rule 5605(a)(2) of the Nasdaq Stock Market Rules. The compensation committee assists
the board in reviewing and approving the compensation structure, including all forms of compensation, relating to our
directors and executive officers. Our chief executive officer may not be present at any committee meeting during which his
compensation is deliberated. The compensation committee is responsible for, among other things:
● reviewing and approving, or recommending to the board for its approval, the compensation for our chief
executive officer and other executive officers;
● reviewing and recommending to the board for determination with respect to the compensation of our non-
employee directors;
● reviewing periodically and approving any incentive compensation or equity plans, programs or similar
arrangements; and
● selecting compensation consultant, legal counsel or other adviser only after taking into consideration all factors
relevant to that person’s independence from management.
Nominating and Corporate Governance Committee. Our nominating and corporate governance committee consists of
Dr. Qi Lu and Mr. George Yong-Boon Yeo. Dr. Qi Lu and Mr. George Yong-Boon Yeo each satisfies the “independence”
requirements of Rule 5605(a)(2) of the Nasdaq Stock Market Rules. The nominating and corporate governance committee
assists the board of directors in selecting individuals qualified to become our directors and in determining the composition
of the board and its committees. The nominating and corporate governance committee is responsible for, among other
things:
● selecting and recommending to the board nominees for election by the shareholders or appointment by the board;
● reviewing annually with the board the current composition of the board with regards to characteristics such as
independence, knowledge, skills, experience and diversity;
● making recommendations on the frequency and structure of board meetings and monitoring the functioning of the
committees of the board; and
● advising the board periodically with regards to significant developments in the law and practice of corporate
governance as well as our compliance with applicable laws and regulations, and making recommendations to the
board on all matters of corporate governance and on any remedial action to be taken.
Duties of Directors
Under Cayman Islands law, our directors owe fiduciary duties to our company, including a duty to act honestly, and a
duty to act in what they consider in good faith to be in our best interests. Our directors must also exercise their powers only
for a proper purpose. Our directors also owe to our company a duty to act with skill and care. It was previously considered
that a director need not exhibit in the performance of his duties a greater degree of skill than may reasonably be expected
from a person of his knowledge and experience. However, English and Commonwealth courts have moved towards an
objective standard with regard to the required skill and care and these authorities are likely to be followed in the Cayman
Islands. In fulfilling their duty of care to our company, our directors must ensure compliance with our memorandum and
articles of association, as amended and restated from time to time, and the rights vested thereunder in the holders of the
shares. Our directors owe their fiduciary duties to our company and not to our company’s individual shareholders, and it is
our company which has the right to seek damages if a duty owed by our directors is breached. In limited exceptional
circumstances, a shareholder may have the right to seek damages in our name if a duty owed by our directors is breached.
111
Table of Contents
Our board of directors has all the powers necessary for managing, and for directing and supervising, our business
affairs. The functions and powers of our board of directors include, among others:
● convening shareholders’ annual general meetings and reporting its work to shareholders at such meetings;
● declaring dividends and distributions;
● appointing officers and determining the term of office of the officers;
● exercising the borrowing powers of our company and mortgaging the property of our company; and
● approving the transfer of shares in our company, including the registration of such shares in our share register.
Terms of Directors and Officers
Our officers are elected by and serve at the discretion of the board of directors. Our directors shall serve and hold
office until expiry of his or her terms or until such time as they are removed from office by ordinary resolutions of the
shareholders. Pursuant to our currently effective articles of association, our board of directors shall consist of not less than
three but not more than nine directors, and shall include (i) two executive directors, if there are no more than five directors,
and (ii) three executive directors, if there are more than five but no more than nine directors. The executive directors shall
be nominated by the Pinduoduo Partnership. Our board of directors is obligated to cause the executive director candidate
duly nominated by the Pinduoduo Partnership to be appointed by the board upon the delivery by the Pinduoduo Partnership
of a written notice (duly executed by the general partner of the Pinduoduo Partnership) to us. The Pinduoduo Partnership is
entitled to nominate the chief executive officer of our company, subject to appointment by the nominating and corporate
governance committee of our board of directors. For additional information, see “Item 6. Directors, Senior Management
and Employees—A. Directors and Senior Management—Pinduoduo Partnership.” A director will be removed from office
automatically if the director (i) becomes bankrupt or makes any arrangement or composition with his creditors; (ii) is found
by our company to be or becomes of unsound mind; (iii) resigns his or her office by notice in writing to us; (iv) without
special leave of absence from the board of directors, is absent from meetings of the board of directors for four consecutive
meetings and the board of directors resolves that his office be vacated; or (v) is removed from office pursuant to the
provisions of our memorandum and articles of association.
D. Employees
Employees
As of December 31, 2019, we had a total of 5,828 employees. We had a total of 1,159 and 3,683 employees as of
December 31, 2017 and 2018, respectively.
The following table gives breakdowns of our employees as of December 31, 2019 by function:
Function:
Sales and marketing
Product development
Platform operation
Management and administration
Total
112
As of December 31,
2019
826
3,613
879
510
5,828
Table of Contents
We are dedicated to providing employees with social benefits, diversified work environment and a wide range of
career development opportunities. We have invested significant resources in employee career development and training
opportunities. For example, we have established training programs that cover topics such as our corporate culture,
employee rights and responsibilities, team-building, professional conduct and job performance. We are committed to
making continued efforts to provide better working environment and benefits to our employees.
As required by regulations in China, we participate in various government statutory employee benefit plans, including
medical insurance, maternity insurance, workplace injury insurance, unemployment insurance and pension benefits through
a PRC government-mandated multi-employer defined contribution plan. We are required under PRC law to contribute to
employee benefit plans at specified percentages of the salaries, bonuses and certain allowances of our employees up to a
maximum amount specified by the local government from time to time.
We enter into standard labor contracts with our employees. We also enter into standard confidentiality and non-
compete agreements with all of our senior management and employees. The non-compete restricted period typically
expires two years after the termination of employment, and we may have to compensate the employee with a certain
percentage of his or her pre-departure salary during the restricted period.
We believe that we maintain a good working relationship with our employees, and we have not experienced any major
labor disputes.
E. Share Ownership
Except as specifically noted, the following table sets forth information with respect to the beneficial ownership of our
Class A and Class B ordinary shares as of March 31, 2020 by:
● each of our directors and executive officers; and
● each person known to us to beneficially own more than 5% of our total outstanding ordinary shares.
The calculations in the table below are based on 2,716,057,288 Class A ordinary shares and 2,074,447,700 Class B
ordinary shares outstanding as of April 13, 2020.
113
Table of Contents
Beneficial ownership is determined in accordance with the rules and regulations of the SEC. In computing the number
of shares beneficially owned by a person and the percentage ownership of that person, we have included shares that the
person has the right to acquire within 60 days, including through the exercise of any option, warrant or other right or the
conversion of any other security. These shares, however, are not included in the computation of the percentage ownership
of any other person.
Ordinary Shares Beneficially Owned***
Class A
Ordinary
Shares
Class B
Ordinary
Shares
Total
Ordinary
Shares
% of
Beneficial
Ownership
% of Aggregate
Voting Power†
—
*
192,356,912
—
*
—
*
*
*
2,074,447,700
—
—
—
—
—
—
—
—
2,074,447,700
*
192,356,912
—
*
—
*
*
*
43.3 %
*
4.0 %
—
*
—
*
*
*
88.4 %
*
0.8 %
—
*
—
*
*
*
236,118,312
2,074,447,700
2,310,566,012
48.2 %
89.4 %
—
792,622,428
371,152,772
334,191,580
2,074,447,700
—
—
—
2,074,447,700
792,622,428
371,152,772
334,191,580
43.3 %
16.5 %
7.7 %
7.0 %
88.4 %
3.4 %
1.6 %
1.4 %
Directors and Executive Officers**:
Zheng Huang(1)
Haifeng Lin(2)
Nanpeng Shen(3)
Qi Lu
George Yong-Boon Yeo(4)
Anthony Kam Ping Leung
Lei Chen(5)
Zhenwei Zheng(6)
Junyun Xiao(7)
All Directors and Executive Officers as
a Group
Principal Shareholders:
Entities affiliated with Zheng Huang(8)
Entities affiliated with Tencent(9)
Banyan Partners Funds(10)
Sequoia Funds(11)
Notes:
† For each person and group included in this column, percentage of voting power is calculated by dividing the voting
power beneficially owned by such person or group by the voting power of all of our Class A and Class B ordinary
shares as a single class. Each holder of Class A ordinary shares is entitled to one vote per share and each holder of our
Class B ordinary shares is entitled to ten votes per share on all matters submitted to them for a vote. Our Class A
ordinary shares and Class B ordinary shares vote together as a single class on all matters submitted to a vote of our
shareholders, except as may otherwise be required by law. Our Class B ordinary shares are convertible at any time by
the holder thereof into Class A ordinary shares on a one-for-one basis.
* Less than 1% of our total outstanding shares.
** Except as indicated otherwise below, the business address of our directors and executive officers is 28/F, No. 533
Loushanguan Road, Changning District, Shanghai, People’s Republic of China.
*** Beneficial ownership information disclosed herein represents direct and indirect holdings of entities owned, controlled
or otherwise affiliated with the applicable holder as determined in accordance with the rules and regulations of the
SEC.
114
Table of Contents
(1) Represents (i) 1,134,932,140 Class B ordinary shares directly held by Walnut Street Investment, Ltd., a business
company limited by shares incorporated in the British Virgin Islands, (ii) 388,360,860 Class B ordinary shares directly
held by Walnut Street Management, Ltd., a business company limited by shares incorporated in the British Virgin
Islands, and (iii) 551,154,700 Class B ordinary shares directly held by Pure Treasure Limited, a limited liability
company incorporated in Samoa. Each of Walnut Street Investment, Ltd., Walnut Street Management, Ltd. and Pure
Treasure Limited is controlled by Steam Water Limited, a business company limited by shares incorporated in the
British Virgin Islands, which is beneficially owned by Mr. Zheng Huang through a trust established under the laws of
the British Virgin Islands. Mr. Huang is the settlor of the trust, and Mr. Huang and his family members are the trust’s
beneficiaries.
(2) Represents the ADSs held by Mr. Haifeng Lin. The business address of Mr. Lin is 44/F, Tencent Binhai Towers, No.33
Haitian 2nd Road, Nanshan District, Shenzhen, People’s Republic of China.
(3) Represents (i) 181,830,600 Class A ordinary shares directly held by SCC Growth IV Holdco A, Ltd., an exempted
company with limited liability incorporated under the laws of the Cayman Islands; (ii) 2,397,631 ADSs, representing
9,590,524 Class A ordinary shares, directly held by Sequoia Capital China Growth Fund V, L.P., an exempted
partnership with limited liability formed under the laws of the Cayman Islands; (iii) 131,316 ADSs, representing
525,264 Class A ordinary shares, directly held by Sequoia Capital China Growth Partners Fund V, L.P., an exempted
partnership with limited liability formed under the law of the Cayman Islands; and (iv) 102,631 ADSs, representing
410,524 Class A ordinary shares, directly held by Sequoia Capital China Growth V Principals Fund, L.P., an exempted
partnership with limited liability formed under the law of the Cayman Islands. SCC Growth IV Holdco A, Ltd. is
wholly owned by Sequoia Capital China Growth Fund IV, L.P. The general partner of Sequoia Capital China Growth
Fund IV, L.P. is SC China Growth IV Management, L.P., whose general partner is SC China Holding Limited. The
general partner of each of Sequoia Capital China Growth Fund V, L.P., Sequoia Capital China Growth Partners Fund
V, L.P. and Sequoia Capital China Growth V Principals Fund, L.P. is SC China Growth V Management L.P., whose
general partner is SC China Holding Limited. SC China Holding Limited is wholly owned by SNP China Enterprises
Limited, which in turn is wholly owned by Mr. Nanpeng Shen. The business address of Mr. Shen is Suite 3613, 36/F,
Two Pacific Place, 88 Queensway, Hong Kong.
(4) Represents the ADSs held by Mr. George Yong-Boon Yeo. The business address of Mr. Yeo is Suite 6219, Cape
Mansions, 62 Mount Davis Road, Hong Kong.
(5) Represents Class A ordinary shares that Mr. Lei Chen may purchase upon exercise of options within 60 days of March
31, 2020.
(6) Represents Class A ordinary shares that Mr. Zhenwei Zheng may purchase upon exercise of options within 60 days of
March 31, 2020.
(7) Represents Class A ordinary shares that Mr. Junyun Xiao may purchase upon exercise of options within 60 days of
March 31, 2020.
(8) Represents (i) 1,134,932,140 Class B directly held by Walnut Street Investment, Ltd., a business company limited by
shares incorporated in the British Virgin Islands, (ii) 388,360,860 Class B ordinary shares directly held by Walnut
Street Management, Ltd., a business company limited by shares incorporated in the British Virgin Islands, and (iii)
551,154,700 Class B ordinary shares directly held by Pure Treasure Limited, a limited liability company incorporated
in Samoa. Each of Walnut Street Investment, Ltd., Walnut Street Management, Ltd. and Pure Treasure Limited is
controlled by Steam Water Limited, a business company limited by shares incorporated in the British Virgin Islands,
which is beneficially owned by Mr. Zheng Huang through a trust established under the laws of the British Virgin
Islands. Mr. Huang is the settlor of the trust, and Mr. Huang and his family members are the trust’s beneficiaries.
Walnut Street Investment, Ltd., Walnut Street Management, Ltd. and Pure Treasure Limited are collectively referred to
as entities affiliated with Mr. Huang. The registered address of each of Walnut Street Investment, Ltd. and Walnut
Street Management, Ltd. is Trinity Chambers, P.O. Box 4301, Road Town, Tortola, British Virgin Islands. The
registered address of Pure Treasure Limited is Offshore Chambers, P.O. Box 217, Apia, Samoa.
115
Table of Contents
(9) Represents (i) 752,759,908 Class A ordinary shares directly held by Tencent Mobility Limited, a limited liability
company incorporated in Hong Kong, (ii) 12,081,240 Class A ordinary directly held by TPP Follow-on I Holding G
Limited, a limited liability company incorporated in the Cayman Islands, and (iii) 27,781,280 Class A ordinary shares
held by Chinese Rose Investment Limited, a limited liability company incorporated in the British Virgin Islands, as
reported in a Schedule 13D/A filed by Tencent Holdings Limited on April 3, 2020. Tencent Mobility Limited, TPP
Follow-on I Holding G Limited and Chinese Rose Investment Limited are investing entities either directly or
beneficially owned by Tencent Holdings Limited, and are collectively referred to as entities affiliated with Tencent.
Tencent Holdings Limited is a limited liability company incorporated in the Cayman Islands and is listed on the Hong
Kong Stock Exchange. The registered address of Tencent Mobility Limited is 29/F, Three Pacific Place, No. 1 Queen’s
Road East, Wanchai, Hong Kong. The registered address of TPP Follow-on I Holding G Limited is P.O. Box 309,
Ugland House, Grand Cayman, KY1-1104, Cayman Islands. The registered address of Chinese Rose Investment
Limited is P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands.
(10) Represents (i) 353,034,992 Class A ordinary shares directly held by Banyan Partners Fund II, L.P., an exempted
limited partnership formed under the law of the Cayman Islands, (ii) 15,400,109 Class A ordinary shares directly held
by Banyan Partners Fund III, L.P., an exempted limited partnership formed under the law of the Cayman Islands, and
(iii) 2, 717,671 Class A shares directly held by Banyan Partners Fund III-A, L.P., an exempted limited partnership
formed under the law of the Cayman Islands. The general partner of Banyan Partners Fund II, L.P. is Banyan Partners
II Ltd., a Cayman Islands company. The general partner of each of Banyan Partners Fund III, L.P. and Banyan Partners
Fund III-A, L.P. is Banyan Partners III Ltd., a Cayman Islands company. Messrs. Zhen Zhang, Bin Yue and Xiang Gao
are the shareholders of each of Banyan Partners II Ltd. and Banyan Partners III Ltd. Banyan Partners Fund II, L.P.,
Banyan Partners Fund III, L.P. and Banyan Partners Fund III-A, L.P. are collectively referred to as Banyan Partners
Funds. The registered address of Banyan Partners Fund II, L.P. is Intertrust Corporate Services (Cayman) Limited, 190
Elgin Avenue, George Town, Grand Cayman KY1-9005, Cayman Islands. The registered address of each of Banyan
Partners Fund III, L.P. and Banyan Partners Fund III-A, L.P. is Walkers Corporate Limited, Cayman Corporate Centre,
27 Hospital Road, George Town, Grand Cayman, KY1-9008, Cayman Islands.
(11) Represents (i) 181,830,600 Class A ordinary shares directly held by SCC Growth IV Holdco A, Ltd., an exempted
company with limited liability incorporated under the law of the Cayman Islands, (ii) 120,782,040 Class A ordinary
shares held by SC GGFII Holdco, Ltd., an exempted company with limited liability incorporated under the law of the
Cayman Islands, (iii) 2,397,631 ADSs, representing 9,590,524 Class A ordinary shares, directly held by Sequoia
Capital China Growth Fund V, L.P., an exempted partnership with limited liability formed under the law of the
Cayman Islands, (iv) 5,154,210 ADSs, representing 20,616,840 Class A ordinary shares, directly held by Sequoia
Capital Global Growth Fund III—Endurance Partners, L.P., an exempted partnership with limited liability formed
under the law of the Cayman Islands, (v) 131,316 ADSs, representing 525,264 Class A ordinary shares, directly held
by Sequoia Capital China Growth Partners Fund V, L.P., an exempted partnership with limited liability formed under
the law of the Cayman Islands, (vi) 102,631 ADSs, representing 410,524 Class A ordinary shares, directly held by
Sequoia Capital China Growth V Principals Fund, L.P., an exempted partnership with limited liability formed under
the law of the Cayman Islands, and (vii) 108,947 ADSs, representing 435,788 Class A ordinary shares, directly held
by Sequoia Capital Global Growth Fund III—Endurance Partners Principals Fund, L.P., an exempted partnership with
limited liability formed under the law of the Cayman Islands.
116
Table of Contents
SCC Growth IV Holdco A, Ltd. is wholly owned by Sequoia Capital China Growth Fund IV, L.P. The general partner
of Sequoia Capital China Growth Fund IV, L.P. is SC China Growth IV Management, L.P., whose general partner is SC
China Holding Limited. The general partner of each of Sequoia Capital China Growth Fund V, L.P., Sequoia Capital China
Growth Partners Fund V, L.P. and Sequoia Capital China Growth V Principals Fund, L.P. is SC China Growth V
Management, L.P., whose general partner is SC China Holding Limited. SC China Holding Limited is wholly owned by
SNP China Enterprises Limited, which in turn is wholly owned by Mr. Nanpeng Shen. Mr. Shen, together with SCC
Growth IV Holdco A, Ltd., Sequoia Capital China Growth Fund IV, L.P., SC China Growth IV Management, L.P., Sequoia
Capital China Growth Fund V, L.P., Sequoia Capital China Growth Partners Fund V, L.P. and Sequoia Capital China
Growth V Principals Fund, L.P., SC China Growth V Management, L.P., SC China Holding Limited and SNP China
Enterprises Limited, are collectively referred to as Sequoia Capital China. SC GGFII Holdco, Ltd. is owned by Sequoia
Capital Global Growth Fund II, L.P. and Sequoia Capital Global Growth II Principals Fund, L.P., whose general partner is
SC Global Growth II Management, L.P. The general partner of SC Global Growth II Management, L.P. is SC US (TTGP),
Ltd. The directors and stockholders of SC US (TTGP), Ltd. who exercise voting and investment discretion with respect to
the shares held by SC GGFII Holdco, Ltd. are Messrs. Roelof Botha and Douglas Leone. The general partner of each of
Sequoia Capital Global Growth Fund III—Endurance Partners, L.P. and Sequoia Capital Global Growth Fund III—
Endurance Partners Principals Fund, L.P. is SCGGF III—Endurance Partners Management, L.P. The general partner of
SCGGF III—Endurance Partners Management, L.P. is SC US (TTGP), Ltd. The directors and stockholders of SC US
(TTGP), Ltd. who exercise voting and investment discretion with respect to the shares held by each of Sequoia Capital
Global Growth Fund III—Endurance Partners, L.P., L.P. and Sequoia Capital Global Growth Fund III—Endurance Partners
Principals Fund, are Messrs. Botha and Leone. Messrs. Botha and Leone, together with SC GGFII Holdco, Ltd., Sequoia
Capital Global Growth Fund II, L.P., Sequoia Capital Global Growth II Principals Fund, L.P., SC Global Growth II
Management, L.P., Sequoia Capital Global Growth Fund III—Endurance Partners, L.P., Sequoia Capital Global Growth
Fund III—Endurance Partners Principals Fund, L.P., SCGGF III—Endurance Partners Management, L.P. and SC US
(TTGP), Ltd., are collectively referred to as Sequoia Capital Global Growth. Sequoia Capital China and Sequoia Capital
Global Growth may be deemed to be a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended, with respect to their ownership of our shares, and are collectively referred to as Sequoia Funds. The
registered address of SCC Growth IV Holdco A, Ltd., Sequoia Capital China Growth Fund V, L.P., Sequoia Capital China
Growth Partners Fund V, L.P. and Sequoia Capital China Growth V Principals Fund, L.P. is Maples Corporate Services
Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, and the address for each of the Sequoia
Capital Global Growth entities is 2800 Sand Hill Road, Suite 101, Menlo Park, CA, the United States of America.
To our knowledge, as of April 13, 2020, a total of 1,101,729,676 Class A ordinary shares are held by one record holder
in the United States, representing approximately 23.0% of our total outstanding shares. The holder is Deutsche Bank Trust
Company Americas, the depositary of our ADS program. None of our outstanding Class B ordinary shares are held by
record holders in the United States. The number of beneficial owners of our ADSs in the United States is likely to be much
larger than the number of record holders of our ordinary shares in the United States.
Item 7. Major Shareholders and Related Party Transactions
A. Major Shareholders
Please refer to “Item 6. Directors, Senior Management and Employees—E. Share Ownership.”
B. Related Party Transactions
Contractual Arrangements with Our Variable Interest Entity and its Shareholders
For a description of these contractual arrangements, see “Item 4. Information on the Company—C. Organizational
Structure.”
117
Table of Contents
Shareholders Agreement
We entered into our seventh amended and restated shareholders agreement on March 5, 2018 with our then
shareholders. Pursuant to this shareholders agreement, we have granted certain registration rights to our shareholders. Set
forth below is a description of the registration rights granted under the agreement.
Demand Registration Rights. Holders holding at least 30% or more of the issued and outstanding registrable securities
(on an as converted basis) held by the preferred shareholders, the Class B ordinary shareholders and Class A ordinary
shareholders have the right to demand in writing that we file a registration statement covering the registration of at least
25% of their registrable securities. We have the right to defer filing of a registration statement for a period of not more than
90 days if we determine in good faith that filing of a registration statement in the near future will be materially detrimental
to us or our shareholders, but we cannot exercise the deferral right for more than once during any twelve-month period and
cannot register any other securities during such 90-day period. We are not obligated to effect more than two demand
registrations. Further, if the registrable securities are offered by means of an underwritten offering, and the underwriters
advise us that marketing factors require a limitation of the number of securities to be underwritten, the number of
registrable securities that may be included in the underwriting shall be reduced as required by the underwriters and
allocated among the holders of registrable securities on a pro rata basis according to the number of registrable securities
requested by each holder, provided that all other equity securities are first excluded and 25% of shares of registrable
securities requested by the holders are included.
Registration on Form F-3. Any holder may request us to file a registration statement on Form F-3 if we qualify for
registration on Form F-3. The holders are entitled to an unlimited number of registrations on Form F-3 so long as such
registration offerings are in excess of US$500,000. We, however, are not obligated to consummate a registration if we have
consummated two registrations within any twelve-month period. We have the right to defer filing of a registration
statement for a period of not more than 60 days if we determine in good faith that filing of a registration statement in the
near future will be materially detrimental to us or our shareholders, but we cannot exercise the deferral right for more than
once during any twelve-month period and cannot register any other securities during such 60-day period.
Piggyback Registration Rights. If we propose to register for a public offering or our securities other than relating to
any share incentive plan or a corporate reorganization, we must notify all holders of registrable securities and offer them an
opportunity to be included in such registration. If the managing underwriter determines in good faith that market factors
require a limitation of the number of registrable securities to be underwritten, the managing underwriter may decide to
exclude shares from the registration and the underwriting, and the number of shares that may be included in the registration
and the underwriting will be allocated, first, to us, second, to each of the holders requesting inclusion of their registrable
securities on a pro rata basis based on the total amount of registrable securities requested by each such holder, and third, to
holders of other securities of our company, provided that all other equity securities are first excluded and 25% of shares of
registrable securities requested by the holders are included.
Expenses of Registration. We will bear all registration expenses, other than the underwriting discounts and
commissions, fees for special counsel for the holders participating in such registration and certain excepted expenses as
described in the shareholders agreement, incurred in connection with registrations, filings or qualification pursuant to the
shareholders agreement.
Termination of Obligations. We have no obligation to effect any demand, piggyback or Form F-3 registration upon
(i) the fifth anniversary from the date of closing of a Qualified Initial Public Offering (as defined in the shareholders
agreement), (ii) upon the termination, liquidation or dissolution of our company or a Liquidation Event (as defined in the
shareholders agreement), or (iii) all registrable securities proposed to be sold by a holder may then be sold without
registration in any 90-day period under Rule 144 of the Securities Act.
Employment Agreements and Indemnification Agreements
See “Item 6. Directors, Senior Management and Employees—B. Compensation.”
118
Table of Contents
Share Incentive Plan
See “Item 6. Directors, Senior Management and Employees—B. Compensation.”
Agreement and Business Cooperation with Tencent
Strategic Cooperation Framework Agreement. In February 2018, we entered into a Strategic Cooperation Framework
Agreement with Tencent, a provider of internet value-added services serving the largest online community in China.
Pursuant to the Strategic Cooperation Framework Agreement, Tencent agreed to offer us access points on the interface of
Weixin Pay enabling us to utilize traffic from Tencent’s Weixin Pay. In addition, we and Tencent have agreed to cooperate
in a number of areas including payment solutions, cloud services and user engagement, and to explore and pursue
additional opportunities for potential cooperation. Tencent agreed to provide us with Weixin payment services and charge
the payment processing fee corresponding to each transaction payment through Wexin Wallet on our platform at a rate no
higher than the normal rate of its payment solutions charged to third parties. Tencent also agreed to share technical and
administrative resources with us and make reasonable efforts to provide support in a variety of professional areas, such as
talent recruiting, training and technical resources. The Strategic Cooperation Framework Agreement has a term of five
years.
Business Cooperation with Tencent. Tencent has been a principal shareholder of us since February 2017. In 2017, 2018
and 2019, we purchased certain services, including payment processing, advertising and cloud services, from Tencent in
the total amount of RMB516.0 million, RMB1,266.4 million, and RMB2,298.1 million (US$330.1 million), respectively.
As of December 31, 2017, 2018 and 2019, we had a receivable balance from Tencent of RMB442.7 million, RMB1,019.0
million, and RMB1,905.8 million (US$273.8 million), respectively, and a payable balance to Tencent of RMB56.0 million,
RMB458.1 million, and RMB1,502.9 million (US$215.9 million), respectively.
Passive Investments in Related-Party Funds
The Company set up funds as a limited partner with related parties to make investments in privately-held companies.
As of December 31, 2019, the carrying amount for the investments was RMB249.6 million (US$35.9 million). As of
December 31, 2018, the advances made to set up funds was RMB182.7 million.
Loan to Ningbo Hexin and Business Cooperation Agreement with Shanghai Fufeitong
We currently rely on commercial banks and third-party online payment service providers for payment processing and
escrow services on our platform. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Business—We
currently rely on commercial banks and third-party online payment service providers for payment processing and escrow
services on our platform. If these payment services are restricted or curtailed in any way, are offered to us on less favorable
terms, or become unavailable to us or our buyers for any reason, our business may be materially and adversely affected.”
To mitigate risk and impact on our business operations in the event of disruption or discontinuance of our relationship with
commercial banks and third-party online payment service providers, we facilitated Messrs. Lei Chen and Zhenwei Zheng,
our executive officers, to acquire the controlling equity interests in Shanghai Fufeitong, a licensed payment service
company, by providing an interest-free loan of RMB459.6 million (US$66.0 million) to Ningbo Hexin Equity Investment
Partnership, or Ningbo Hexin, a limited partnership controlled by Messrs. Lei Chen and Zhenwei Zheng in November
2019.
In January 2020, Ningbo Hexin increased its indirect ownership of the equity interests in Shanghai Fufeitong to
50.01%. Subject to compliance with applicable laws and regulations and approval by relevant regulatory authorities,
Hangzhou Aimi may require Hexin to repay the loan at any time and use the proceeds to pay for the limited partnership
interests in Ningbo Hexin. As of December 31, 2019, the loan was still outstanding.
In April 2020, Shanghai Xunmeng entered into a business cooperation agreement with Shanghai Fufeitong, pursuant to
which both parties agreed to conduct comprehensive business cooperation in payment services, technical resources and
other related professional areas.
119
Table of Contents
Other Related Party Transactions
Transactions with Toshare Group Holding Limited, or Toshare Group. Toshare Group is under control of Mr. Zheng
Huang, our chairman and chief executive officer. Since September 2019, Toshare Group Holding Limited was no longer
our related party. Before 2017, we purchased fulfillment services from Toshare Group. Since 2017, we did not purchase
any such services from Toshare Group. As of December 31, 2017 and 2018, we had a total amount of RMB19.0 million
and RMB20.0 million due to Toshare Group, respectively.
Transactions with Suzhou Lebei Network Technology Co., Ltd., or Suzhou Lebei. Suzhou Lebei was controlled by one
of our directors for the year ended December 31, 2017. Since June 2018, Suzhou Lebei was no longer our related party. We
purchased technology services from Suzhou Lebei in the amount of RMB2.4 million in 2017. As of December 31, 2017,
2018 and 2019, we had a receivable balance from Suzhou Lebei of RMB221 thousand, nil and nil and a payable balance to
Suzhou Lebei of RMB1.0 million, nil and nil.
Transactions with Hangzhou LeGu Investment Consulting Co., Ltd., or Hangzhou LeGu. Hangzhou LeGu is controlled
by Mr. Zheng Huang, our chairman and chief executive officer. In August 2017, we entered into a loan agreement with
Hangzhou LeGu whereby we lent a total of RMB159.8 million to Hangzhou LeGu. The loan bears an interest rate of
4.75% per annum. As of December 31, 2017, the outstanding amount under the loan made to Hangzhou LeGu is
RMB162.4 million. On April 12, 2018, we and Hangzhou LeGu agreed to an early repayment of the loan, and the interest
rate was adjusted to 4.35% per annum to reflect the actual term of the loan. The loan was repaid in full in April 2018.
C. Interests of Experts and Counsel
Not applicable.
Item 8. Financial Information
A. Consolidated Statements and Other Financial Information
We have appended consolidated financial statements filed as part of this annual report.
Legal Proceedings
From time to time, we may be involved in disputes and legal or administrative proceedings in the ordinary course of
our business, including actions with respect to product quality complaints, breach of contract, labor and employment
claims, copyright, trademark and patent infringement, and other matters. For example, in July 2018, a complaint was filed
against us in the U.S. federal court alleging contributory trademark infringement and unfair competition based on certain
allegedly counterfeit and unauthorized merchandise sold by merchants to U.S. consumers on our platform. In August,
2019, the court dismissed all claims against us. Further, in March 2020, the court awarded us the fees and costs of the legal
proceedings. Between August and December 2018, several putative shareholder class action lawsuits were filed against us
and certain of our officers and directors in the U.S. District Court for the Southern District of New York (“SDNY”) and the
Superior Court of the State of California. The plaintiffs in these cases allege, in sum and substance, that certain disclosure
and statements made by our company in connection with our initial public offering contained material misstatements and
omissions in violation of the federal securities laws. In March 2020, the court granted our motion to dismiss the claims in
the consolidated action in the SDNY. The consolidated action in the Superior Court of the State of California was stayed in
June 2019 at our request while the abovementioned SDNY action was pending, but may resume now that the SDNY case
has been resolved. For risks and uncertainties relating to the pending cases against us, please see “Item 3. Key Information
—D. Risk Factors—Risks Related to Our Business—We and certain of our directors and officers have been named as
defendants in several shareholder class action lawsuits, which could have a material adverse impact on our business,
financial condition, results of operation, cash flows and reputation” and “Item 3. Key Information—D. Risk Factors—
Risks Related to Our Business—We may incur liability for counterfeit, unauthorized, illegal, or infringing products sold or
misleading information available on our platforms.”
120
Table of Contents
Dividend Policy
Our board of directors has complete discretion on whether to distribute dividends, subject to our memorandum and
articles of association and certain requirements of Cayman Islands law. In addition, our shareholders may by ordinary
resolution declare a dividend, but no dividend may exceed the amount recommended by our board of directors. Even if our
board of directors decides to pay dividends, the form, frequency and amount will depend upon our future operations and
earnings, capital requirements and surplus, general financial condition, contractual restrictions and other factors that the
board of directors may deem relevant.
We do not have any present plan to pay any cash dividends on our ordinary shares in the foreseeable future. We
currently intend to retain most, if not all, of our available funds and any future earnings to operate and expand our business.
We are a holding company incorporated in the Cayman Islands. We may rely on dividends from our subsidiaries in
China for our cash requirements, including any payment of dividends to our shareholders. PRC regulations may restrict the
ability of our PRC subsidiaries to pay dividends to us. See “Item 4. Information on the Company—B. Business Overview
—Regulation—Regulations Relating to Dividend Distributions.”
If we pay any dividends on our ordinary shares, we will pay those dividends which are payable in respect of the
Class A ordinary shares underlying our ADSs to the depositary, as the registered holder of such Class A ordinary shares,
and the depositary then will pay such amounts to our ADS holders in proportion to Class A ordinary shares underlying the
ADSs held by such ADS holders, subject to the terms of the deposit agreement, including the fees and expenses payable
thereunder. Cash dividends on our ordinary shares, if any, will be paid in U.S. dollars.
B. Significant Changes
Except as disclosed elsewhere in this annual report, we have not experienced any significant changes since the
date of our audited consolidated financial statements included in this annual report.
Item 9. The Offer and Listing
A. Offering and Listing Details
Our ADSs, each representing four Class A ordinary shares, have been listed on Nasdaq Stock Market since July 26,
2018. Our ADSs trade under the symbol “PDD.”
B. Plan of Distribution
Not applicable.
C. Markets
Our ADSs, each representing four Class A ordinary shares of ours, have been listed on Nasdaq Stock Market since
July 26, 2018 under the symbol “PDD.”
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
121
Table of Contents
F. Expenses of the Issue
Not applicable.
Item 10. Additional Information
A. Share Capital
Not applicable.
B. Memorandum and Articles of Association
The following are summaries of material provisions of our currently effective memorandum and articles of association
and of the Companies Law, insofar as they relate to the material terms of our ordinary shares.
Objects of Our Company. Under our memorandum and articles of association, the objects of our company are
unrestricted and we have the full power and authority to carry out any object not prohibited by the law of the Cayman
Islands.
Ordinary Shares. Our ordinary shares are divided into Class A ordinary shares and Class B ordinary shares. Holders of
our Class A ordinary shares and Class B ordinary shares will have the same rights except for voting and conversion rights.
Each Class A ordinary share shall entitle the holder thereof to one (1) vote on all matters subject to vote at our general
meetings, and each Class B ordinary share shall entitle the holder thereof to ten (10) votes on all matters subject to vote at
our general meetings. Our ordinary shares are issued in registered form and are issued when registered in our register of
members.
Conversion. Each Class B ordinary share is convertible into one Class A ordinary share at any time by the holder
thereof. Class A ordinary shares are not convertible into Class B ordinary shares under any circumstances. Upon any sale ,
transfer, assignment or disposition of any Class B ordinary shares by a holder thereof to any person other than Mr. Zheng
Huang or any entity which is not ultimately controlled by Mr. Zheng Huang, such Class B ordinary shares shall be
automatically and immediately converted into the same number of Class A ordinary shares.
Dividends. The holders of our ordinary shares are entitled to such dividends as may be declared by our board of
directors. Under the laws of the Cayman Islands, our company may declare and pay a dividend out of either profit or share
premium account, provided that in no circumstances may a dividend be paid if this would result in our company being
unable to pay its debts as they fall due in the ordinary course of business.
Voting Rights. Our Class A ordinary shares and Class B ordinary shares vote together as a single class on all matters
submitted to a vote of our shareholders, except as may otherwise be required by law or provided for in our memorandum
and articles of association. In respect of matters requiring shareholders’ vote, each Class A ordinary share is entitled to one
vote, and each Class B ordinary share is entitled to ten votes. At any general meeting a resolution put to the vote of the
meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of
hands) demanded by the chairman.
A quorum required for a meeting of shareholders consists of one or more shareholders holding not less than a majority
of all votes attaching to all of our shares in issue and entitled to vote present in person or by proxy or, if a corporation or
other non-natural person, by its duly authorized representative. Advance notice of at least ten calendar days is required for
the convening of our annual general meeting and other shareholders meetings.
122
Table of Contents
An ordinary resolution to be passed at a meeting by the shareholders requires the affirmative vote of a simple majority
of the votes attaching to the ordinary shares cast at a meeting. A special resolution requires the affirmative vote of no less
than two-thirds of the votes cast attaching to the outstanding shares at a meeting. Our articles of association provide that a
special resolution shall be required, and that for the purposes of any such special resolution, the affirmative vote of no less
than 95% of votes cast by the shareholders entitled to vote who are present in person or by proxy at a general meeting shall
be required to approve any amendments to any provisions of our articles of association that relate to or have an impact
upon: (i) the right of the Pinduoduo Partnership to appoint executive directors and nominate the chief executive officer
candidate of our company as described under “Item 6. Directors, Senior Management and Employees—A. Directors and
Senior Management—Pinduoduo Partnership—Executive Director Appointment and CEO Nomination Right,” and (ii) the
procedures regarding the election, appointment and removal of directors or size of the board. Both ordinary resolutions and
special resolutions may also be passed by a unanimous written resolution signed by all the shareholders of our company, as
permitted by the Companies Law and our memorandum and articles of association. A special resolution will be required
for important matters such as a change of name or making changes that will affect the rights, preferences, privileges or
powers of the preferred shareholders.
General Meetings of Shareholders. As a Cayman Islands exempted company, we are not obliged by the Companies
Law to call shareholders’ annual general meetings. Our articles of association provide that we may (but are not obliged to)
in each year hold a general meeting as our annual general meeting in which case we shall specify the meeting as such in the
notices calling it, and the annual general meeting shall be held at such time and place as may be determined by our
directors.
Shareholders’ general meetings may be convened by the chairman or a majority of our board of directors. Advance
notice of at least ten (10) calendar days is required for the convening of our annual general shareholders’ meeting (if any)
and any other general meeting of our shareholders. A quorum required for any general meeting of shareholders consists of
one or more shareholders present or by proxy, representing not less than a majority of all votes attaching to all of our shares
in issue and entitled to vote.
The Companies Law provides shareholders with only limited rights to requisition a general meeting, and does not
provide shareholders with any right to put any proposal before a general meeting. However, these rights may be provided
in a company’s articles of association. Our memorandum and articles of association provide that upon the requisition of
shareholders representing in aggregate not less than one-third of all votes attaching to all issued and outstanding shares of
our company that as at the date of the deposit carry the right to vote at general meetings of our company, our board of
directors will convene an extraordinary general meeting and put the resolutions so requisitioned to a vote at such meeting.
However, our memorandum and articles of association do not provide our shareholders with any right to put any proposals
before annual general meetings or extraordinary general meetings not called by such shareholders.
Transfer of Ordinary Shares. Subject to the restrictions set out below, any of our shareholders may transfer all or any
of his or her ordinary shares by an instrument of transfer in writing, and shall be executed by or on behalf of the transferor,
and if in respect of a nil or partly paid up share, or the directors so require, shall also be executed by the transferee.
Our board of directors may, in its absolute discretion, decline to register any transfer of any ordinary share which is not
fully paid up or on which we have a lien. Our board of directors may also decline to register any transfer of any ordinary
share unless:
● the instrument of transfer is lodged with us, accompanied by the certificate for the ordinary shares to which it
relates and such other evidence as our board of directors may reasonably require to show the right of the
transferor to make the transfer;
● the instrument of transfer is in respect of only one class of ordinary shares;
● the instrument of transfer is properly stamped, if required;
123
Table of Contents
● in the case of a transfer to joint holders, the number of joint holders to whom the ordinary share is to be
transferred does not exceed four; and
● a fee of such maximum sum as the Nasdaq Global Select Market may determine to be payable or such lesser sum
as our directors may from time to time require is paid to us in respect thereof.
If our directors refuse to register a transfer they shall, within three calendar months after the date on which the
instrument of transfer was lodged, send to each of the transferor and the transferee notice of such refusal.
The registration of transfers may, after compliance with any notice required of the Nasdaq Stock Market, be suspended
and the register closed at such times and for such periods as our board of directors may from time to time determine,
provided, however, that the registration of transfers shall not be suspended nor the register closed for more than 30 calendar
days in any calendar year as our board may determine.
Liquidation. On the winding up of our company, if the assets available for distribution amongst our shareholders shall
be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus shall be
distributed amongst our shareholders in proportion to the par value of the shares held by them at the commencement of the
winding up, subject to a deduction from those shares in respect of which there are monies due, of all monies payable to our
company for unpaid calls or otherwise. If our assets available for distribution are insufficient to repay all of the paid-up
capital, the assets will be distributed so that the losses are borne by our shareholders in proportion to the par value of the
shares held by them.
Calls on Shares and Forfeiture of Shares. Our board of directors may from time to time make calls upon shareholders
for any amounts unpaid on their shares in a notice served to such shareholders at least 14 calendar days prior to the
specified time of payment. The shares that have been called upon and remain unpaid are subject to forfeiture.
Redemption, Repurchase and Surrender of Shares. We may issue shares on terms that such shares are subject to
redemption, at our option or at the option of the holders of these shares, on such terms and in such manner as may be
determined by our board of directors, or by the shareholders by special resolutions. Our Company may also repurchase any
of our shares on such terms and in such manner as have been approved by our board of directors or by an ordinary
resolution of our shareholders. Under the Companies Law, the redemption or repurchase of any share may be paid out of
our Company’s profits or out of the proceeds of a new issue of shares made for the purpose of such redemption or
repurchase, or out of capital (including share premium account and capital redemption reserve) if our company can,
immediately following such payment, pay its debts as they fall due in the ordinary course of business. In addition, under
the Companies Law no such share may be redeemed or repurchased (a) unless it is fully paid up, (b) if such redemption or
repurchase would result in there being no shares outstanding or (c) if the company has commenced liquidation. In addition,
our company may accept the surrender of any fully paid share for no consideration.
Variations of Rights of Shares. If at any time, our share capital is divided into different classes of shares, the rights
attached to any class of shares (unless otherwise provided by the terms of issue of the shares of that class), whether or not
our company is being wound-up, may be varied with the consent in writing of the holders of two-thirds of the issued shares
of that class or with the sanction of a resolution passed at a separate meeting of the holders of the shares of the class by the
holders of two-thirds of the issued shares of that class. The rights conferred upon the holders of the shares of any class
issued shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be
varied by the creation or issue of further shares ranking pari passu with such existing class of shares.
Issuance of Additional Shares. Our memorandum and articles of association authorizes our board of directors to issue
additional ordinary shares from time to time as our board of directors shall determine, to the extent of available authorized
but unissued shares.
124
Table of Contents
Our memorandum of association also authorizes our board of directors to establish from time to time one or more
series of preference shares and to determine, with respect to any series of preference shares, the terms and rights of that
series, including:
● the designation of the series;
● the number of shares of the series;
● the dividend rights, dividend rates, conversion rights, voting rights; and
● the rights and terms of redemption and liquidation preferences.
Our board of directors may issue preference shares without action by our shareholders to the extent authorized but
unissued. Issuance of these shares may dilute the voting power of holders of ordinary shares.
Inspection of Books and Records. Holders of our ordinary shares will have no general right under Cayman Islands law
to inspect or obtain copies of our list of shareholders or our corporate records. However, we will provide our shareholders
with annual audited financial statements.
Anti-Takeover Provisions. Some provisions of our memorandum and articles of association may discourage, delay or
prevent a change of control of our company or management that shareholders may consider favorable, including provisions
that:
● authorize our board of directors to issue preference shares in one or more series and to designate the price, rights,
preferences, privileges and restrictions of such preference shares without any further vote or action by our
shareholders; and
● limit the ability of shareholders to requisition and convene general meetings of shareholders.
However, under Cayman Islands law, our directors may only exercise the rights and powers granted to them under our
memorandum and articles of association for a proper purpose and for what they believe in good faith to be in the best
interests of our company.
Exempted Company. We are an exempted company with limited liability under the Companies Law. The Companies
Law distinguishes between ordinary resident companies and exempted companies. Any company that is registered in the
Cayman Islands but conducts business mainly outside of the Cayman Islands may apply to be registered as an exempted
company. The requirements for an exempted company are essentially the same as for an ordinary company except that an
exempted company:
● does not have to file an annual return of its shareholders with the Registrar of Companies;
● is not required to open its register of members for inspection;
● does not have to hold an annual general meeting;
● may issue negotiable or bearer shares or shares with no par value;
● may obtain an undertaking against the imposition of any future taxation (such undertakings are usually given for
20 years in the first instance);
● may register by way of continuation in another jurisdiction and be deregistered in the Cayman Islands;
● may register as an exempted limited duration company; and
125
Table of Contents
● may register as a segregated portfolio company.
“Limited liability” means that the liability of each shareholder is limited to the amount unpaid by the shareholder on
the shares of the company.
C. Material Contracts
We have not entered into any material contracts other than in the ordinary course of business and other than those
described in “Item 4. Information on the Company” and “Item 7. Major Shareholders and Related Party Transactions—B.
Related Party Transactions” or elsewhere in this annual report on Form 20-F.
D. Exchange Controls
See “Item 4. Information on the Company—B. Business Overview—Regulation—Regulations Relating to Foreign
Exchange.”
E. Taxation
The following summary of the material Cayman Islands, PRC and U.S. federal income tax consequences of an
investment in our ADSs or ordinary shares is based upon laws and relevant interpretations thereof in effect as of the date of
this annual report, all of which are subject to change. This summary does not deal with all possible tax consequences
relating to an investment in our ADSs or ordinary shares, such as the tax consequences under U.S. state and local tax laws
or under the tax laws of jurisdictions other than the Cayman Islands, China and the United States.
Cayman Islands Taxation
The Cayman Islands currently levies no taxes on individuals or corporations based upon profits, income, gains or
appreciation and there is no taxation in the nature of inheritance tax or estate duty. There are no other taxes likely to be
material to us levied by the government of the Cayman Islands except for stamp duties which may be applicable on
instruments executed in, or brought within the jurisdiction of the Cayman Islands. The Cayman Islands is not party to any
double tax treaties that are applicable to any payments made to or by our company. There are no exchange control
regulations or currency restrictions in the Cayman Islands.
Payments of dividends and capital in respect of our ordinary shares and ADSs will not be subject to taxation in the
Cayman Islands, and no withholding will be required on the payment of a dividend or capital to any holder of our ordinary
shares or ADSs, nor will gains derived from the disposal of our ordinary shares or ADSs be subject to Cayman Islands
income or corporation tax.
No stamp duty is payable in respect of the issue of the shares or on an instrument of transfer in respect of a share.
126
Table of Contents
PRC Taxation
Under the PRC Enterprise Income Tax Law and its implementation rules, an enterprise established outside the PRC
with “de facto management body” within the PRC is considered a resident enterprise. The implementation rules define the
term “de facto management body” as the body that exercises full and substantial control and overall management over the
business, productions, personnel, accounts and properties of an enterprise. In April 2009, the State Administration of
Taxation issued a circular, known as Circular 82, which provides certain specific criteria for determining whether the “de
facto management body” of a PRC-controlled enterprise that is incorporated offshore is located in China. Although this
circular only applies to offshore enterprises controlled by PRC enterprises or PRC enterprise groups, not those controlled
by PRC individuals or foreigners, the criteria set forth in the circular may reflect the State Administration of Taxation’s
general position on how the “de facto management body” text should be applied in determining the tax resident status of all
offshore enterprises. According to Circular 82, an offshore incorporated enterprise controlled by a PRC enterprise or a PRC
enterprise group will be regarded as a PRC tax resident by virtue of having its “de facto management body” in China only
if all of the following conditions are met: (i) the primary location of the day-to-day operational management is in the PRC;
(ii) decisions relating to the enterprise’s financial and human resource matters are made or are subject to approval by
organizations or personnel in the PRC; (iii) the enterprise’s primary assets, accounting books and records, company seals,
and board and shareholder resolutions, are located or maintained in the PRC; and (iv) at least 50% of voting board
members or senior executives habitually reside in the PRC.
We believe that Pinduoduo Inc. is not a PRC resident enterprise for PRC tax purposes. Pinduoduo Inc. is not controlled
by a PRC enterprise or PRC enterprise group and we do not believe that Pinduoduo Inc. meets all of the conditions above.
Pinduoduo Inc. is a company incorporated outside China. As a holding company, its key assets are its ownership interests
in its subsidiaries, and its records (including the resolutions of its board of directors and the resolutions of its shareholders)
are maintained, outside China. In addition, we are not aware of any offshore holding companies with a similar corporate
structure as ours ever having been deemed a PRC “resident enterprise” by the PRC tax authorities. However, the tax
resident status of an enterprise is subject to determination by the PRC tax authorities and uncertainties remain with respect
to the interpretation of the term “de facto management body.”
If the PRC tax authorities determine that Pinduoduo Inc. is a PRC resident enterprise for enterprise income tax
purposes, we may be required to withhold a 10% withholding tax from dividends we pay to our shareholders that are non-
resident enterprises, including the holders of our ADSs. In addition, non-resident enterprise shareholders (including our
ADS holders) may be subject to a 10% PRC tax on gains realized on the sale or other disposition of ADSs or ordinary
shares, if such income is treated as sourced from within China. It is unclear whether our non-PRC individual shareholders
(including our ADS holders) would be subject to any PRC tax on dividends or gains obtained by such non-PRC individual
shareholders in the event we are determined to be a PRC resident enterprise. If any PRC tax were to apply to such
dividends or gains, it would generally apply at a rate of 20% unless a reduced rate is available under an applicable tax
treaty. However, it is also unclear whether non-PRC shareholders of Pinduoduo Inc. would be able to claim the benefits of
any tax treaties between their country of tax residence and China in the event that Pinduoduo Inc. is treated as a PRC
resident enterprise. See “Item 3. Key Information—D. Risk Factors—Risks Related to Doing Business in China—If we are
classified as a PRC resident enterprise for PRC income tax purposes, such classification could result in unfavourable tax
consequences to us and our non-PRC shareholders or ADS holders.”
127
Table of Contents
U.S. Federal Income Tax Considerations
The following discussion is a summary of U.S. federal income tax considerations generally applicable to the
ownership and disposition of our ADSs or Class A ordinary shares by a U.S. holder (as defined below) that holds our ADSs
or Class A ordinary shares as “capital assets” (generally, property held for investment) under the U.S. Internal Revenue
Code of 1986, as amended (the “Code”). This discussion is based upon existing U.S. federal income tax law, which is
subject to differing interpretations and may be changed, possibly with retroactive effect. No ruling has been sought from
the Internal Revenue Service (the “IRS”) with respect to any U.S. federal income tax consequences described below, and
there can be no assurance that the IRS or a court will not take a contrary position. This discussion does not address all
aspects of U.S. federal income taxation that may be important to particular investors in light of their individual
circumstances, including investors subject to special tax rules (for example, banks and certain financial institutions,
insurance companies, pension plans, cooperatives, broker-dealers, traders in securities that have elected the mark-to-market
method of accounting for their securities, partnerships and their partners, regulated investment companies, real estate
investment trusts, certain former U.S. citizens or long-term residents, persons liable for alternative minimum tax, and tax-
exempt organizations (including private foundations)), investors who are not U.S. holders, investors who own (directly,
indirectly, or constructively) 10% or more of our stock (by vote or value), investors that will hold their ADSs or Class A
ordinary shares as part of a straddle, hedge, conversion, constructive sale, or other integrated transaction for U.S. federal
income tax purposes, or investors that have a functional currency other than the U.S. dollar, all of whom may be subject to
tax rules that differ significantly from those summarized below. In addition, this discussion does not discuss any non-U.S.,
alternative minimum tax, state, or local tax or any non-income tax (such as the U.S. federal gift or estate tax)
considerations, or the Medicare tax on net investment income. Each U.S. holder is urged to consult its tax advisor regarding
the U.S. federal, state, local, and non-U.S. income and other tax considerations of an investment in our ADSs or Class A
ordinary shares.
General
For purposes of this discussion, a “U.S. holder” is a beneficial owner of our ADSs or Class A ordinary shares that is,
for U.S. federal income tax purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation (or
other entity treated as a corporation for U.S. federal income tax purposes) created in, or organized under the laws of, the
United States or any state thereof or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal
income taxation regardless of its source, or (iv) a trust (A) the administration of which is subject to the primary supervision
of a U.S. court and which has one or more U.S. persons who have the authority to control all substantial decisions of the
trust or (B) that has otherwise elected to be treated as a U.S. person under applicable U.S. Treasury regulations.
If a partnership (or other entity or arrangement treated as a partnership for U.S. federal income tax purposes) is a
beneficial owner of our ADSs or Class A ordinary shares, the tax treatment of a partner in the partnership will generally
depend upon the status of the partner and the activities of the partnership. Partnerships holding our ADSs or Class A
ordinary shares and partners in such partnerships are urged to consult their tax advisors as to the particular U.S. federal
income tax consequences of an investment in our ADSs or Class A ordinary shares.
For U.S. federal income tax purposes, a U.S. holder of ADSs will generally be treated as the beneficial owner of the
underlying shares represented by the ADSs. The remainder of this discussion assumes that a U.S. holder of our ADSs will
be treated as the beneficial owner of the underlying shares represented by the ADSs. Accordingly, deposits or withdrawals
of Class A ordinary shares for ADSs will generally not be subject to U.S. federal income tax.
Passive Foreign Investment Company Considerations
A non-U.S. corporation, such as our company, will be a “passive foreign investment company,” or “PFIC,” for U.S.
federal income tax purposes, if, in any particular taxable year, either (i) 75% or more of its gross income for such year
consists of certain types of “passive” income or (ii) 50% or more of the value of its assets (generally determined on the
basis of a quarterly average) during such year produce or are held for the production of passive income. Cash is categorized
as a passive asset and the company’s unbooked intangibles associated with active business activities may generally be
classified as active assets. Passive income generally includes, among other things, dividends, interest, rents, royalties, and
gains from the disposition of passive assets.
128
Table of Contents
We will be treated as owning a proportionate share of the assets and earning a proportionate share of the income of any
other corporation in which we own, directly or indirectly, at least 25% (by value) of the stock. Although the law in this
regard is unclear, we intend to treat our VIE (including its subsidiaries) as being owned by us for U.S. federal income tax
purposes, and we treat it that way, not only because we exercise effective control over the operation of such entity but also
because we are entitled to substantially all of its economic benefits, and, as a result, we consolidate its results of operations
in our consolidated financial statements. Assuming that we are the owner of our VIE (including its subsidiaries) for U.S.
federal income tax purposes, and based upon our current income and assets and the value of our ADSs, we do not believe
that we were a PFIC for the taxable year ended December 31, 2019 and we do not expect to be classified as a PFIC in the
current taxable year or for the foreseeable future.
While we do not believe that we were a PFIC for the taxable year ended December 31, 2019 and we do not expect to
be or become a PFIC in the current or future taxable years, the determination of whether we are or will become a PFIC will
depend in part upon the value of our goodwill and other unbooked intangibles (which will depend upon the market price of
our ADSs from time-to-time, which may be volatile). In estimating the value of our goodwill and other unbooked
intangibles, we have taken into account our market capitalization. Among other matters, if our market capitalization is less
than anticipated or subsequently declines, we may be or become a PFIC for the current or future taxable years. It is also
possible that the IRS may challenge our classification or valuation of our goodwill and other unbooked intangibles, which
may result in our company being or becoming a PFIC for the current or one or more future taxable years.
The determination of whether we will be or become a PFIC will also depend, in part, on the composition of our
income and assets, which may be affected by how, and how quickly, we use our liquid assets. If we determine not to deploy
significant amounts of cash for active purposes or if we were treated as not owning our VIE for U.S. federal income tax
purposes, our risk of being classified as a PFIC may substantially increase. Because our PFIC status for any taxable year is
a factual determination that can be made only after the close of a taxable year, there can be no assurance that we will not be
a PFIC for the current taxable year or any future taxable year. If we are a PFIC for any year during which a U.S. holder
holds our ADSs or Class A ordinary shares, we generally will continue to be treated as a PFIC for all succeeding years
during which such U.S. holder holds our ADSs or Class A ordinary shares.
The discussion below under “Dividends” and “Sale or Other Disposition of ADSs or Class A Ordinary Shares” is
written on the basis that we will not be or become a PFIC for U.S. federal income tax purposes. The U.S. federal income
tax rules that apply if we are a PFIC for the current taxable year or any subsequent taxable year are generally discussed
below under “Passive Foreign Investment Company Rules.”
Dividends
Subject to the PFIC rules discussed below, any cash distributions paid on our ADSs or Class A ordinary shares
(including the amount of any tax withheld) out of our current or accumulated earnings and profits, as determined under
U.S. federal income tax principles, will generally be includible in the gross income of a U.S. holder as dividend income on
the day actually or constructively received by the U.S. holder, in the case of Class A ordinary shares, or by the depositary,
in the case of ADSs. Because we do not intend to determine our earnings and profits on the basis of U.S. federal income
tax principles, we will generally report any distribution paid as a dividend for U.S. federal income tax purposes. Dividends
received on the ADSs or Class A ordinary shares will not be eligible for the dividends received deduction allowed to
corporations.
129
Table of Contents
Individuals and other non-corporate U.S. holders will generally be subject to tax at the lower capital gain tax rate
applicable to “qualified dividend income,” provided that certain conditions are satisfied, including that (1) our ADSs are
readily tradable on an established securities market in the United States, or, in the event that we are deemed to be a PRC
resident enterprise under the PRC tax law, we are eligible for the benefit of the United States-PRC income tax treaty, (2) we
are neither a PFIC nor treated as such with respect to a U.S. holder (as discussed below) for the taxable year in which the
dividend was paid and the preceding taxable year, and (3) certain holding period requirements are met. Our ADSs are listed
on the Nasdaq Global Select Market. We believe that the ADSs are readily tradable on an established securities market in
the United States and that we are a qualified foreign corporation with respect to dividends paid on the ADSs. There can be
no assurance that our ADSs will continue to be considered readily tradable on an established securities market in later
years. Since we do not expect that our Class A ordinary shares will be listed on established securities markets, we do not
believe that dividends that we pay on our Class A ordinary shares that are not backed by ADSs currently meet the
conditions required for the reduced tax rate. However, in the event we are deemed to be a resident enterprise under the PRC
Enterprise Income Tax Law, we may be eligible for the benefits of the United States-PRC income tax treaty (which the
U.S. Treasury Department has determined is satisfactory for this purpose) and in that case, we would be treated as a
qualified foreign corporation with respect to dividends paid on our Class A ordinary shares as well as our ADSs. Each non-
corporate U.S. holder is advised to consult its tax advisors regarding the availability of the reduced tax rate applicable to
qualified dividend income for any dividends we pay with respect to our ADSs or Class A ordinary shares.
Dividends generally will be treated as income from foreign sources for U.S. foreign tax credit purposes and generally
will constitute passive category income. In the event that we are deemed to be a PRC “resident enterprise” under the
Enterprise Income Tax Law, a U.S. holder may be subject to PRC withholding taxes on dividends paid on our ADSs or
Class A ordinary shares. See “Item 10. Additional Information—E. Taxation—PRC Taxation.” In that case, a U.S. holder
may be eligible, subject to a number of complex limitations, to claim a foreign tax credit in respect of any foreign
withholding taxes imposed on dividends received on ADSs or Class A ordinary shares. A U.S. holder who does not elect to
claim a foreign tax credit for foreign tax withheld may instead claim a deduction, for U.S. federal income tax purposes, in
respect of such withholdings, but only for a year in which such U.S. holder elects to do so for all creditable foreign income
taxes. The rules governing the foreign tax credit are complex. U.S. holders are advised to consult their tax advisors
regarding the availability of the foreign tax credit under their particular circumstances.
Sale or Other Disposition of ADSs or Class A Ordinary Shares
Subject to the PFIC rules discussed below, a U.S. holder generally will recognize capital gain or loss upon the sale or
other disposition of ADSs or Class A ordinary shares in an amount equal to the difference between the amount realized
upon the disposition and the U.S. holder’s adjusted tax basis in such ADSs or Class A ordinary shares. Any capital gain or
loss will be long-term if the ADSs or Class A ordinary shares have been held for more than one year and generally will be
U.S. source gain or loss for U.S. foreign tax credit purposes. Long-term capital gains of individuals and other non-
corporate U.S. holders generally are eligible for a reduced rate of taxation. The deductibility of a capital loss may be
subject to limitations.
In the event that we are treated as a PRC “resident enterprise” under the Enterprise Income Tax Law and gain from the
disposition of the ADSs or Class A ordinary shares is subject to tax in the PRC, a U.S. holder that is eligible for the
benefits of the income tax treaty between the United States and the PRC may elect to treat the gain as PRC source income.
If a U.S. holder is not eligible for the benefits of the income tax treaty or fails to make the election to treat any gain as
foreign source, then such U.S. holder may not be able to use the foreign tax credit arising from any PRC tax imposed on
the disposition of the ADSs or Class A ordinary shares unless such credit can be applied (subject to applicable limitations)
against U.S. federal income tax due on other income derived from foreign sources in the same income category (generally,
the passive category). U.S. holders are advised to consult their tax advisors regarding the tax consequences if a foreign tax
is imposed on a disposition of our ADSs or Class A ordinary shares, including the availability of the foreign tax credit
under their particular circumstances and the election to treat any gain as PRC source.
130
Table of Contents
Passive Foreign Investment Company Rules
If we are a PFIC for any taxable year during which a U.S. holder holds our ADSs or Class A ordinary shares, and
unless the U.S. holder makes a mark-to-market election (as described below), the U.S. holder will generally be subject to
special tax rules that have a penalizing effect, regardless of whether we remain a PFIC, for subsequent taxable years, on
(i) any excess distribution that we make to the U.S. holder (which generally means any distribution paid during a taxable
year to a U.S. holder that is greater than 125% of the average annual distributions paid in the three preceding taxable years
or, if shorter, the U.S. holder’s holding period for the ADSs or Class A ordinary shares), and (ii) any gain realized on the
sale or other disposition, including, under certain circumstances, a pledge, of ADSs or Class A ordinary shares. Under the
PFIC rules:
● such excess distribution and/or gain will be allocated ratably over the U.S. holder’s holding period for the ADSs
or Class A ordinary shares;
● such amount allocated to the current taxable year and any taxable years in the U.S. holder’s holding period prior
to the first taxable year in which we are a PFIC, or pre-PFIC year, will be taxable as ordinary income;
● such amount allocated to each prior taxable year, other than a pre-PFIC year, will be subject to tax at the highest
tax rate in effect for that year; and
● an interest charge generally applicable to underpayments of tax will be imposed on the tax attributable to each
prior taxable year, other than a pre-PFIC year.
If we are a PFIC for any taxable year during which a U.S. holder holds our ADSs or Class A ordinary shares and any
of our non-U.S. subsidiaries is also a PFIC, such U.S. holder would be treated as owning a proportionate amount (by value)
of the shares of the lower-tier PFIC for purposes of the application of these rules. U.S. holders are advised to consult their
tax advisors regarding the application of the PFIC rules to any of our subsidiaries.
As an alternative to the foregoing rules, a U.S. holder of “marketable stock” in a PFIC may make a mark-to-market
election with respect to our ADSs, but not our Class A ordinary shares provided that the ADSs are regularly traded on the
Nasdaq Global Select Market. Our ADSs are expected to qualify as being regularly traded, but no assurances may be given
in this regard. Because a mark-to-market election technically cannot be made for any lower-tier PFICs that a PFIC may
own, a U.S. holder who makes a mark-to-market election with respect to our ADSs will generally continue to be subject to
the PFIC rules with respect to such U.S. holder’s indirect interest in any investments held by us that are treated as an equity
interest in a PFIC for U.S. federal income tax purposes.
If a U.S. holder makes a mark-to-market election with respect to our ADSs, the U.S. holder generally will (i) include
as ordinary income for each taxable year that we are a PFIC the excess, if any, of the fair market value of ADSs held at the
end of the taxable year over the adjusted tax basis of such ADSs and (ii) deduct as an ordinary loss the excess, if any, of the
adjusted tax basis of the ADSs over the fair market value of such ADSs held at the end of the taxable year, but only to the
extent of the net amount previously included in income as a result of the mark-to-market election. The U.S. holder’s
adjusted tax basis in the ADSs would be adjusted to reflect any income or loss resulting from the mark-to-market election.
Further, in each year that we are a PFIC any gain recognized upon the sale or other disposition of the ADSs will be treated
as ordinary income and loss will be treated as ordinary loss, but only to the extent of the net amount previously included in
income as a result of the mark-to-market election. If a U.S. holder makes a mark-to-market election it will be effective for
the taxable year for which the election is made and all subsequent taxable years unless the ADSs are no longer regularly
traded on a qualified exchange or the IRS consents to the revocation of the election. It should also be noted that it is
intended that only the ADSs and not the Class A ordinary shares will be listed on the Nasdaq Global Select Market.
Consequently, if a U.S. holder holds Class A ordinary shares that are not represented by ADSs, such holder generally will
not be eligible to make a mark-to-market election if we are or were to become a PFIC.
131
Table of Contents
If a U.S. holder makes a mark-to-market election in respect of a PFIC and such corporation ceases to be a PFIC, the
U.S. holder will not be required to take into account the mark-to-market gain or loss described above during any period that
such corporation is not a PFIC.
We do not intend to provide information necessary for U.S. holders to make qualified electing fund elections, which, if
available, would result in tax treatment different from (and generally less adverse than) the general tax treatment for PFICs
described above.
If a U.S. holder owns our ADSs or Class A ordinary shares during any taxable year that we are a PFIC, such holder
would generally be required to file an annual IRS Form 8621. Each U.S. holder is advised to consult its tax advisors
regarding the potential tax consequences to such holder if we are or become a PFIC, including the possibility of making a
mark-to-market election.
F. Dividends and Paying Agents
Not applicable.
G. Statement by Experts
Not applicable.
H. Documents on Display
We are subject to periodic reporting and other informational requirements of the Exchange Act as applicable to foreign
private issuers, and are required to file reports and other information with the SEC. Specifically, we are required to file
annually an annual report on Form 20-F within four months after the end of each fiscal year, which is December 31. All
information filed with the SEC can be obtained over the internet at the SEC’s website at www.sec.gov or inspected and
copied at the public reference facilities maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You can
request copies of documents, upon payment of a duplicating fee, by writing to the SEC. As a foreign private issuer, we are
exempt from the rules under the Exchange Act prescribing the furnishing and content of quarterly reports and proxy
statements, and officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery
provisions contained in Section 16 of the Exchange Act.
We will furnish Deutsche Bank Trust Company Americas, the depositary of our ADSs, with our annual reports, which
will include a review of operations and annual audited consolidated financial statements prepared in conformity with U.S.
GAAP, and all notices of shareholders’ meetings and other reports and communications that are made generally available
to our shareholders. The depositary will make such notices, reports and communications available to holders of ADSs and,
upon our request, will mail to all record holders of ADSs the information contained in any notice of a shareholders’
meeting received by the depositary from us.
In accordance with Nasdaq Stock Market Rule 5250(d), we will post this annual report on Form 20-F on our website at
http://investor.pinduoduo.com. In addition, we will provide hardcopies of our annual report free of charge to shareholders
and ADS holders upon request.
I. Subsidiary Information
Not applicable.
132
Table of Contents
Item 11. Quantitative and Qualitative Disclosures about Market Risk
Foreign exchange risk
Substantially all of our revenues and expenses are denominated in RMB. We do not believe that we currently have any
significant direct foreign exchange risk and have not used any derivative financial instruments to hedge exposure to such
risk. Although our exposure to foreign exchange risks should be limited in general, the value of your investment in our
ADSs will be affected by the exchange rate between U.S. dollar and Renminbi because the value of our business is
effectively denominated in RMB, while our ADSs will be traded in U.S. dollars.
The conversion of Renminbi into foreign currencies, including U.S. dollars, is based on rates set by the People's Bank
of China. The Renminbi has fluctuated against the U.S. dollar, at times significantly and unpredictably. It is difficult to
predict how market forces or PRC or U.S. government policy may impact the exchange rate between Renminbi and the
U.S. dollar in the future.
To the extent that we need to convert U.S. dollars into Renminbi for our operations, appreciation of the Renminbi
against the U.S. dollar would have an adverse effect on the RMB amount we receive from the conversion. Conversely, if
we decide to convert Renminbi into U.S. dollars for the purpose of making payments for dividends on our ordinary shares
or ADSs or for other business purposes, appreciation of the U.S. dollar against the Renminbi would have a negative effect
on the U.S. dollar amounts available to us.
Interest rate risk
Our exposure to interest rate risk primarily relates to the interest income generated by excess cash, which is mostly
held in interest-bearing bank deposits, restricted cash and short-term investments. Interest-earning instruments carry a
degree of interest rate risk. We have not been exposed to material risks due to changes in interest rates, and we have not
used any derivative financial instruments to manage our interest risk exposure.
Inflation
To date, inflation in China has not materially impacted our results of operations. According to the National Bureau of
Statistics of China, the year-over-year percent changes in the consumer price index for December 2017, 2018 and 2019
were increases of 1.8%, 1.9% and 4.5%, respectively. Although we have not been materially affected by inflation in the
past, we can provide no assurance that we will not be affected by higher rates of inflation in China in the future.
Item 12. Description of Securities Other than Equity Securities
A. Debt Securities
Not applicable.
B. Warrants and Rights
Not applicable.
C. Other Securities
Not applicable.
133
Table of Contents
D. American Depositary Shares
Fees and Expenses Our ADS Holders May Have to Pay
As an ADS holder, you will be required to pay the following service fees to the depositary bank and certain taxes and
governmental charges (in addition to any applicable fees, expenses, taxes and other governmental charges payable on the
deposited securities represented by any of your ADSs):
Service
- To any person to which ADSs are issued or to any person to
which a distribution is made in respect of ADS distributions
pursuant to stock dividends or other free distributions of stock,
bonus distributions, stock splits or other distributions (except
where converted to cash)
Up to US$0.05 per ADS issued
Fees
- Cancellation of ADSs, including the case of termination of the
Up to US$0.05 per ADS cancelled
deposit agreement
- Distribution of cash dividends
Up to US$0.05 per ADS held
- Distribution of cash entitlements (other than cash dividends)
and/or cash proceeds from the sale of rights, securities and other
entitlements
Up to US$0.05 per ADS held
- Distribution of ADSs pursuant to exercise of rights.
Up to US$0.05 per ADS held
- Distribution of securities other than ADSs or rights to purchase
Up to US$0.05 per ADS held
additional ADSs
- Depositary services
Up to US$0.05 per ADS held on the applicable
record date(s) established by the depositary bank
As an ADS holder, you will also be responsible to pay certain fees and expenses incurred by the depositary bank and
certain taxes and governmental charges (in addition to any applicable fees, expenses, taxes and other governmental charges
payable on the deposited securities represented by any of your ADSs) such as:
● Fees for the transfer and registration of Class A ordinary shares charged by the registrar and transfer agent for the
Class A ordinary shares in the Cayman Islands (i.e., upon deposit and withdrawal of Class A ordinary shares).
● Expenses incurred for converting foreign currency into U.S. dollars.
● Expenses for cable, telex and fax transmissions and for delivery of securities.
● Taxes and duties upon the transfer of securities, including any applicable stamp duties, any stock transfer charges
or withholding taxes (i.e., when Class A ordinary shares are deposited or withdrawn from deposit).
● Fees and expenses incurred in connection with the delivery or servicing of Class A ordinary shares on deposit.
● Fees and expenses incurred in connection with complying with exchange control regulations and other regulatory
requirements applicable to Class A ordinary shares, deposited securities, ADSs and ADRs.
● Any applicable fees and penalties thereon.
134
Table of Contents
The depositary fees payable upon the issuance and cancellation of ADSs are typically paid to the depositary bank by
the brokers (on behalf of their clients) receiving the newly issued ADSs from the depositary bank and by the brokers (on
behalf of their clients) delivering the ADSs to the depositary bank for cancellation. The brokers in turn charge these fees to
their clients. Depositary fees payable in connection with distributions of cash or securities to ADS holders and the
depositary services fee are charged by the depositary bank to the holders of record of ADSs as of the applicable ADS
record date.
The depositary fees payable for cash distributions are generally deducted from the cash being distributed or by selling
a portion of distributable property to pay the fees. In the case of distributions other than cash (i.e., share dividends, rights),
the depositary bank charges the applicable fee to the ADS record date holders concurrent with the distribution. In the case
of ADSs registered in the name of the investor (whether certificated or uncertificated in direct registration), the depositary
bank sends invoices to the applicable record date ADS holders. In the case of ADSs held in brokerage and custodian
accounts (via DTC), the depositary bank generally collects its fees through the systems provided by DTC (whose nominee
is the registered holder of the ADSs held in DTC) from the brokers and custodians holding ADSs in their DTC accounts.
The brokers and custodians who hold their clients’ ADSs in DTC accounts in turn charge their clients’ accounts the amount
of the fees paid to the depositary banks.
In the event of refusal to pay the depositary fees, the depositary bank may, under the terms of the deposit agreement,
refuse the requested service until payment is received or may set off the amount of the depositary fees from any
distribution to be made to the ADS holder.
Fees and Other Payments Made by the Depositary to Us
The depositary has agreed to make payments to us and reimburse us for certain costs and expenses upon such rates and
terms as agreed between the depository and us. Pursuant to such agreement, we received from the depository US$1.3
million, after deduction of applicable U.S. taxes, in the year ended December 31, 2019.
Item 13. Defaults, Dividend Arrearages and Delinquencies
PART II
None.
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds
Material Modifications to the Rights of Security Holders
None.
Use of Proceeds
The following “Use of Proceeds” information relates to the registration statement on Form F-1, as amended (File
Number 333-226014 ) (the “F-1 Registration Statement”) in relation to our initial public offering of 85,600,000 ADSs
representing 342,400,000 Class A ordinary shares, without taking into account over-allotment, at an initial offering price of
US$19.00 per ADS. Our initial public offering closed in July 2018. Credit Suisse Securities (USA) LLC, Goldman Sachs
(Asia) L.L.C., China International Capital Corporation Hong Kong Securities Limited, China Renaissance Securities (Hong
Kong) Limited were the representatives of the underwriters for our initial public offering.
The F-1 Registration Statement was declared effective by the SEC on July 25, 2018. For the period from the effective
date of the F-1 Registration Statement to December 31, 2019, the total expenses incurred for our company’s account in
connection with our initial public offering was approximately US$60.2 million, which included US$52.3 million in
underwriting discounts and commissions for the initial public offering and approximately US$7.9 million in other costs and
expenses for our initial public offering. We received net proceeds of approximately US$1.7 billion from our initial public
offering. None of the transaction expenses included payments to directors or officers of our company or their associates,
persons owning more than 10% or more of our equity securities or our affiliates. None of the net proceeds from the initial
public offering were paid, directly or indirectly, to any of our directors or officers or their associates, persons owning 10%
or more of our equity securities or our affiliates.
135
Table of Contents
For the period from July 25, 2018, the date that the Form F-1 was declared effective by the SEC, to December 31,
2019, we used US$1,205.2 million of the net proceeds from our initial public offering for investment in business
operations, research and development, and for general corporate purpose. There is no material change in the use of
proceeds as described in the F-1 Registration statement. We still intend to use the remainder of the proceeds from our initial
public offering, as disclosed in our registration statements on Form F-1.
Item 15. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our management, under the supervision and with the participation of our chief executive officer, carried out an
evaluation of the effectiveness of our disclosure controls and procedures, which is defined in Rules 13a-15(e) of the
Exchange Act, as of December 31, 2019. Based upon that evaluation, our management, with the participation of our chief
executive officer, has concluded that, as of the end of the period covered by this annual report, our disclosure controls and
procedures were effective in ensuring that the information required to be disclosed by us in the reports that we file or
submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the
SEC’s rules and forms, and that the information required to be disclosed by us in the reports that we file or submit under
the Exchange Act is accumulated and communicated to our management, including our chief executive officer, as
appropriate, to allow timely decisions regarding required disclosure.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting , as
defined in Rules 13a-15 (f) under the Exchange Act. Our management, with the participation of our chief executive officer,
evaluated the effectiveness of our internal control over financial reporting based on criteria established in the framework in
Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway
Commission. Based on this evaluation, our management has concluded that our internal control over financial reporting
was effective as of December 31, 2019.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree of compliance with the policies and procedures may
deteriorate.
Our independent registered public accounting firm, Ernst & Young Hua Ming LLP, has audited the effectiveness of our
internal control over financial reporting as of December 31, 2019, as stated in its report, which appears on page F-4 of this
annual report.
Changes in Internal Control over Financial Reporting
Other than as described above, there were no changes in our internal controls over financial reporting that occurred
during the period covered by this annual report on Form 20-F that have materially affected, or are reasonably likely to
materially affect, our internal control over financial reporting.
Item 16A. Audit Committee Financial Expert
Our board of directors has determined that Mr. Anthony Kam Ping Leung, an independent director (under the
standards set forth in Nasdaq Stock Market Rule 5605(a)(2) and Rule 10A-3 under the Exchange Act) and member of our
audit committee, is an audit committee financial expert.
136
Table of Contents
Item 16B. Code of Ethics
Our board of directors adopted a code of business conduct and ethics that applies to our directors, officers and
employees in June 2018. We have posted a copy of our code of business conduct and ethics on our website at
http://investor.pinduoduo.com.
Item 16C. Principal Accountant Fees and Services
The following table sets forth the aggregate fees by categories specified below in connection with certain professional
services rendered by Ernst & Young Hua Ming LLP, our principal external auditors, for the periods indicated.
Audit fees(1)
All other fees(2)
2018
US$
2019
US$
(in thousands)
2,324
34
946
23
(1) “Audit fees” represents the aggregate fees billed for each of the fiscal years listed for professional services rendered by
our principal auditors for the audit of our annual financial statements, issue of comfort letters in connection with our
initial public offering, follow-on offering, and issuance of unsecured senior notes, assistance with and review of
documents filed with the SEC.
(2) “All other fees” represents the aggregate fees billed in each of the fiscal years listed for services rendered by our
principal auditors other than services reported under “Audit Fees”.
The policy of our audit committee is to pre-approve all audit and non-audit services provided by Ernst & Young Hua
Ming LLP, including audit services, audit-related services, tax services and other services as described above, other than
those for de minimis services which are approved by the audit committee prior to the completion of the audit.
Item 16D. Exemptions from the Listing Standards for Audit Committees
Not applicable.
Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Not applicable.
Item 16F. Change in Registrant’s Certifying Accountant
Not applicable.
Item 16G. Corporate Governance
As a Cayman Islands exempted company listed on Nasdaq Stock Market, we are subject to the Nasdaq corporate
governance listing standards. However, Nasdaq rules permit a foreign private issuer like us to follow the corporate
governance practices of its home country. Certain corporate governance practices in the Cayman Islands, which is our
home country, may differ significantly from the Nasdaq corporate governance listing standards. We rely on home country
practice exemption with respect to the requirement for annual shareholders meeting and did not hold an annual
shareholders meeting in 2019. We may also opt to rely on additional home country practice exemptions in the future. As a
result, our shareholders may be afforded less protection than they would otherwise enjoy under the Nasdaq Stock Market
corporate governance listing standards applicable to U.S. domestic issuers. See “Item 3. Key Information—D. Risk Factors
—Risks Related to Our ADSs—As a company incorporated in the Cayman Islands, we are permitted to adopt certain home
country practices in relation to corporate governance matters that differ significantly from the Nasdaq corporate
governance listing standards; these practices may afford less protection to shareholders than they would enjoy if we
complied fully with the Nasdaq corporate governance listing standards.”
137
Table of Contents
Item 16H. Mine Safety Disclosure
Not applicable.
PART III
Item 17. Financial Statements
We have elected to provide financial statements pursuant to Item 18.
Item 18. Financial Statements
The consolidated financial statements of Pinduoduo Inc., its subsidiaries and its consolidated variable interest entity
are included at the end of this annual report.
Item 19. Exhibits
Exhibit
Number
Description of Document
1.1
Ninth Amended and Restated Memorandum and Articles of Association of the Registrant (incorporated
herein by reference to Exhibit 3.2 to the registration statement on Form F-1/A filed with the Securities and
Exchange Commission on July 16, 2018 (File No. 333-226014))
2.1 Registrant’s Specimen American Depositary Receipt (included in Exhibit 2.3)
2.2
2.3
2.4
Registrant’s Specimen Certificate for Class A Ordinary Shares (incorporated herein by reference to
Exhibit 4.2 to the registration statement on Form F-1/A filed with the Securities and Exchange Commission
on July 16, 2018 (File No. 333-226014))
Deposit Agreement by and among the Registrant, the depositary and the holders and beneficial owners of
the American Depositary Receipts issued thereunder dated July 25, 2018 (incorporated herein by reference
to Exhibit 4.3 to the registration statement on Form F-1 filed with the Securities and Exchange Commission
on February 5, 2019 (File No. 333-229523))
Seventh Amended and Restated Shareholders Agreement between the Registrant and other parties thereto
dated March 5, 2018 (incorporated herein by reference to Exhibit 4.4 to the Form F-1 filed on June 29,
2018 (File No. 333-226014))
2.5*
Indenture, dated as of September 27, 2019, between Pinduoduo Inc. and Deutsche Bank Trust Company
Americas, as trustee
2.6* Description of Securities
4.1
4.2
4.3
2015 Global Share Plan (incorporated herein by reference to Exhibit 10.1 to the registration statement on
Form F-1 filed with the Securities and Exchange Commission on June 29, 2018 (File No. 333-226014))
2018 Share Incentive Plan (incorporated herein by reference to Exhibit 10.14 to the registration statement
on Form F-1/A filed with the Securities and Exchange Commission on July 16, 2018 (File No. 333-
226014))
Form of Indemnification Agreement between the Registrant and its directors and executive officers
(incorporated herein by reference to Exhibit 10.2 to the registration statement on Form F-1 filed with the
Securities and Exchange Commission on June 29, 2018 (File No. 333-226014))
138
Table of Contents
Exhibit
Number
4.4
4.5*
4.6*
4.7
4.8*
4.9
4.10
4.11
4.12
4.13
4.14
Description of Document
Form of Employment Agreement between the Registrant and its executive officers(incorporated herein by
reference to Exhibit 10.3 to the registration statement on Form F-1 filed with the Securities and Exchange
Commission on June 29, 2018 (File No. 333-226014))
English translation of the Shareholders' Voting Rights Proxy Agreement among Hangzhou Weimi,
Hangzhou Aimi and the shareholders of Hangzhou Aimi dated September 23, 2019
English translation of the Equity Pledge Agreement among Hangzhou Weimi, Hangzhou Aimi and the
shareholders of Hangzhou Aimi dated September 23, 2019
English translation of the Exclusive Consulting and Services Agreement between Hangzhou Weimi and
Hangzhou Aimi dated June 5, 2015 (incorporated herein by reference to Exhibit 10.6 to the registration
statement on Form F-1 filed with the Securities and Exchange Commission on June 29, 2018 (File No. 333-
226014))
English translation of the Exclusive Option Agreement among Hangzhou Weimi, Hangzhou Aimi and the
shareholders of Hangzhou Aimi dated September 23, 2019
English translation of the Spousal Consent Letters (incorporated herein by reference to Exhibit 10.8 to the
registration statement on Form F-1 filed with the Securities and Exchange Commission on June 29, 2018
(File No. 333-226014))
Series D Preferred Shares Purchase Agreement between the Registrant and other parties thereto, dated
February 14, 2018 (incorporated herein by reference to Exhibit 10.9 to the registration statement on
Form F-1 filed with the Securities and Exchange Commission on June 29, 2018 (File No. 333-226014))
Series C-3 Preferred Shares Purchase Agreement between the Registrant and other parties thereto, dated
June 28, 2017 (incorporated herein by reference to Exhibit 10.10 to the registration statement on Form F-1
filed with the Securities and Exchange Commission on June 29, 2018 (File No. 333-226014))
Series C Preferred Shares Purchase Agreement between the Registrant and other parties thereto, dated
January 26, 2017 (incorporated herein by reference to Exhibit 10.11 to the registration statement on
Form F-1 filed with the Securities and Exchange Commission on June 29, 2018 (File No. 333-226014))
Series B-4 Preferred Shares Purchase Agreement between the Registrant and other parties thereto, dated
June 22, 2016 (incorporated herein by reference to Exhibit 10.12 to the registration statement on Form F-1
filed with the Securities and Exchange Commission on June 29, 2018 (File No. 333-226014))
English translation of the Strategic Cooperation Framework Agreement by and between the Registrant and
an affiliate of Tencent Holdings Limited dated February 27, 2018 (incorporated herein by reference to
Exhibit 10.13 to the registration statement on Form F-1 filed with the Securities and Exchange Commission
on June 29, 2018 (File No. 333-226014))
8.1* List of Subsidiaries and Consolidated Variable Interest Entities of the Registrant
11.1
Code of Business Conduct and Ethics of the Registrant (incorporated herein by reference to Exhibit 99.1 to
the registration statement on Form F-1 filed with the Securities and Exchange Commission on June 29,
2018 (File No. 333-226014))
12.1* CEO Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
12.2* CFO Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
139
Table of Contents
Exhibit
Number
Description of Document
13.1** CEO Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
13.2** CFO Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
15.1* Consent of King & Wood Mallesons
15.2*
Consent of Ernst & Young Hua Ming LLP, Independent Registered Public Accounting Firm
101.INS* XBRL Instance Document
101.SCH* XBRL Taxonomy Extension Scheme Document
101.CAL* XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF* XBRL Taxonomy Extension Definition Linkbase Document
101.LAB* XBRL Taxonomy Extension Label Linkbase Document
101.PRE* XBRL Taxonomy Extension Presentation Linkbase Document
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Filed with this Annual Report on Form 20-F.
** Furnished with this Annual Report on Form 20-F.
140
Table of Contents
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and
authorized the undersigned to sign this annual report on its behalf.
SIGNATURES
Date: April 24, 2020
Pinduoduo Inc.
By: /s/ Zheng Huang
Name: Zheng Huang
Title: Chairman of the Board of Directors
and Chief Executive Officer
141
Table of Contents
PINDUODUO INC.
Index to Consolidated Financial Statements
Contents
Reports of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2018 and 2019
Page(s)
F-2 – F-5
F-6 – F-7
Consolidated Statements of Comprehensive Loss for the Years Ended December 31, 2017, 2018 and 2019
F-8
Consolidated Statements of Shareholders’ (Deficits)/Equity for the Years Ended December 31, 2017,
2018 and 2019
Consolidated Statements of Cash Flows for the Years Ended December 31, 2017, 2018 and 2019
F-9
F-10
Notes to Consolidated Financial Statements for the Years Ended December 31, 2017, 2018 and 2019
F-11– F-48
F-1
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Shareholders and the Board of Directors of Pinduoduo Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Pinduoduo Inc. (the Company) as of December 31, 2018
and 2019, the related consolidated statements of comprehensive loss, shareholders' (deficits)/equity and cash flows for each
of the three years in the period ended December 31, 2019, and the related notes (collectively referred to as the
“consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material
respects, the financial position of the Company at December 31, 2018 and 2019, and the results of its operations and its
cash flows for each of the three years in the period ended December 31, 2019, in conformity with U.S. generally accepted
accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United
States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2019, based on criteria
established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the
Treadway Commission (2013 framework), and our report dated April 24, 2020 expressed an unqualified opinion thereon.
Adoption of New Accounting Standards
As discussed in Note 2 to the consolidated financial statements, the Company changed its method for accounting for
revenue from contracts with customers in the year ended December 31, 2018 and its method for accounting for leases in
the year ended December 31, 2019.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion
on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB
and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the
applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement,
whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the
financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures
included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits
also included evaluating the accounting principles used and significant estimates made by management, as well as
evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our
opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements
that was communicated or required to be communicated to the audit committee and that: (1) relates to accounts or
disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex
judgments. The communication of the critical audit matter does not alter in any way our opinion on the consolidated
financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a
separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
F-2
Table of Contents
Accounting for Incentives Provided to the Consumers
Description
of the matter
As described in Note 2 to the consolidated financial statements, to promote its online marketplace and
attract more registered consumers, the Company at its own discretion offers the consumers various
forms of incentives, for example, coupons, credits and discounts, that are not specific to any merchant.
These incentives are primarily used by consumers to purchase merchandises offered on the Company’s
online marketplace at reduced purchase price. The associated costs incurred by the Company are
primarily recognized as marketing expenses.
Auditing the accounting for the Company’s incentives offered to consumers was complex due to
judgement involved in analyzing the varying features in the different incentive programs. This included
evaluating the Company’s determination of whether the incentives offered represent implicit
obligations to the consumers on behalf of the merchants and if so, whether the consumers are the
customers. Such determination is used in the process of evaluating the presentation and disclosures of
the costs associated with the incentives as marketing expenses or net of revenues.
How we
addressed
the matter in
our audit
We obtained an understanding, evaluated the design and tested the operating effectiveness of controls
over the Company’s accounting for the incentive programs. For example, we tested the controls over
the approval of incentive programs and management's review of the analysis of the varying features in
the incentive programs for the appropriate presentation and disclosures of the associated program costs.
To audit the presentation and disclosures of the incentive program costs, we compared the programs
and their respective features documented in management’s analysis to the program terms and
conditions presented to the consumers and the merchants by the Company on its platform. We also
evaluated management’s judgement applied in determining whether the terms and conditions
underlying the incentive programs contain any implicit obligations of the Company to incentivize the
consumers on behalf of the merchants. In addition, we assessed the adequacy of the Company’s
disclosures included in Note 2 to the consolidated financial statements regarding the accounting for the
incentives.
/s/ Ernst & Young Hua Ming LLP
We have served as the Company’s auditor since 2018.
Shanghai, the People’s Republic of China
April 24, 2020
F-3
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Shareholders and the Board of Directors of Pinduoduo Inc.
Opinion on Internal Control Over Financial Reporting
We have audited Pinduoduo Inc.’s internal control over financial reporting as of December 31, 2019 based on criteria
established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the
Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Pinduoduo Inc. (the Company) maintained,
in all material respects, effective internal control over financial reporting as of December 31, 2019, based on the COSO
criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United
States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2018 and 2019, and the related
consolidated statements of comprehensive loss, shareholders’ (deficits)/equity and cash flows for each of the three years in
the period ended December 31, 2019 and the related notes (collectively referred to as the “consolidated financial
statements”) and our report dated April 24, 2020 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting, and for its
assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s
Annual Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Company’s
internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB
and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the
applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in
all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material
weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk,
and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides
a reasonable basis for our opinion.
Definition and Limitations of Internal Control Over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and
procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded
as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and
that receipts and expenditures of the company are being made only in accordance with authorizations of management and
directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
F-4
Table of Contents
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also,
projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate
because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ Ernst & Young Hua Ming LLP
Shanghai, the People’s Republic of China
April 24, 2020
F-5
Table of Contents
PINDUODUO INC.
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands of Renminbi (“RMB”) and U.S. dollars (“US$”), except for number of shares and per share
data)
ASSETS
Current assets
Cash and cash equivalents
Restricted cash
Receivables from online payment platforms
Short-term investments
Amounts due from related parties
Prepayments and other current assets
Total current assets
Non-current assets
Property, equipment and software, net
Intangible asset
Right-of-use assets
Other non-current assets
Total non-current assets
Total Assets
LIABILITIES AND SHAREHOLDERS’ EQUITY
Current liabilities
Amounts due to related parties (including amounts due to related parties of the
consolidated VIE and its subsidiaries without recourse to the primary beneficiary of
RMB458,147 and RMB1,502,892 (US$215,877) as of December 31, 2018 and 2019,
respectively)
Customer advances and deferred revenues (including customer advances and deferred
revenues of the consolidated VIE and its subsidiaries without recourse to the primary
beneficiary of RMB190,382 and RMB605,969 (US$87,042) as of December 31,
2018 and 2019, respectively)
Payable to merchants (including payable to merchants of the consolidated VIE and its
subsidiaries without recourse to the primary beneficiary of RMB17,275,934 and
RMB29,657,227 (US$4,259,994) as of December 31, 2018 and 2019, respectively)
Accrued expenses and other liabilities (including accrued expenses and other liabilities
of the consolidated VIE and its subsidiaries without recourse to the primary
beneficiary of RMB1,500,951 and RMB3,420,728 (US$491,358) as of December 31,
2018 and 2019, respectively)
Merchant deposits (including merchant deposits of the consolidated VIE and its
subsidiaries without recourse to the primary beneficiary of RMB4,188,273 and
RMB7,840,912 (US$1,126,277) as of December 31, 2018 and 2019, respectively)
Short-term borrowings (including short-term borrowings of the consolidated VIE and
its subsidiaries without recourse to the primary beneficiary of nil and RMB898,748
(US$129,097) as of December 31, 2018 and 2019, respectively)
Lease liabilities (including lease liabilities of the consolidated VIE and its subsidiaries
without recourse to the primary beneficiary of nil and RMB90,523 (US$13,003) as
of December 31, 2018 and 2019, respectively)
Total current liabilities
Convertible bonds
Lease liabilities (including lease liabilities of the consolidated VIE and its subsidiaries
without recourse to the primary beneficiary of nil and RMB382,673 (US$54,968) as
of December 31, 2018 and 2019, respectively)
Other non-current liabilities
Total non-current liabilities
Total liabilities
Note
2018
RMB
As of December 31,
2019
RMB
US$
4
19
5
6
7
8
9
14,160,322
16,379,364
247,586
7,630,689
1,019,033
953,989
40,390,983
29,075
2,579,338
—
182,667
2,791,080
43,182,063
5,768,186
27,577,671
1,050,974
35,288,827
2,365,528
950,277
73,001,463
41,273
1,994,292
517,188
503,120
3,055,873
76,057,336
828,548
3,961,285
150,963
5,068,923
339,787
136,499
10,486,005
5,928
286,462
74,289
72,269
438,948
10,924,953
19
478,113
1,502,892
215,877
191,482
605,970
87,042
17,275,934
29,926,488
4,298,671
10
2,225,667
4,877,062
700,547
11
8
12
8
4,188,273
7,840,912
1,126,277
—
—
24,359,469
—
—
—
—
898,748
129,097
115,734
45,767,806
5,206,682
16,624
6,574,135
747,893
428,593
7,389
5,642,664
61,564
1,061
810,518
24,359,469
51,410,470
7,384,653
F-6
Table of Contents
PINDUODUO INC.
CONSOLIDATED BALANCE SHEETS (CONTINUED)
(Amounts in thousands of Renminbi (“RMB”) and U.S. dollars (“US$”), except for number of shares and per share
data)
Note
2018
RMB
As of December 31,
2019
RMB
US$
Shareholders’ equity
Class A ordinary shares (US$0.000005 par value; 77,300,000,000 shares authorized,
2,381,240,988 issued and outstanding as of December 31, 2018; 77,300,000,000
shares authorized, 2,575,580,988 issued and outstanding as of December 31, 2019)
Class B ordinary shares (US$0.000005 par value; 2,200,000,000 authorized,
2,074,447,700 issued and outstanding as of December 31, 2018 and 2019)
15
15
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficits
Total shareholders’ equity
Total liabilities and shareholders’ equity
78
84
12
64
29,114,527
1,035,783
(11,327,858)
18,822,594
43,182,063
64
41,493,949
1,448,230
(18,295,461)
24,646,866
76,057,336
9
5,960,233
208,025
(2,627,979)
3,540,300
10,924,953
F-7
Table of Contents
PINDUODUO INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
Note
2017
RMB
2018
RMB
2019
RMB
US$
For the years ended December 31,
Revenues
Online marketplace services
Merchandise sales
Total revenues
Costs of revenues
Costs of online marketplace services (including services received from
a related party of RMB1,042,630 and RMB1,424,786 (US$204,658)
for the years ended December 31, 2018 and 2019, respectively)
Costs of merchandise sales
Total costs of revenues
Gross profit
Sales and marketing expenses
General and administrative expenses
Research and development expenses (including services received from
a related party of RMB223,732 and RMB873,288 (US$125,440) for
the years ended December 31, 2018 and 2019, respectively)
Impairment of a long-term investment
Total operating expenses
Operating loss
Interest and investment gain, net
Interest expense
Foreign exchange (loss)/gain
Other income/(loss), net
Loss before income tax and share of results of equity investees
Income tax expenses
Share of results of equity investees
Net loss
Deemed distribution to certain holders of convertible preferred shares
Contribution from a holder of convertible preferred shares
Net loss attributable to ordinary shareholders
Loss per share:
Basic
Diluted
Shares used in loss per share computation:
Basic
Diluted
Other comprehensive (loss)/income, net of tax of nil
Foreign currency translation difference, net of tax of nil
Comprehensive loss
16
18
9
20
F-8
1,740,691
3,385
1,744,076
13,119,990
—
13,119,990
30,141,886
—
30,141,886
4,329,611
—
4,329,611
(719,778)
(3,052)
(722,830)
(2,905,249)
—
(2,905,249)
(6,338,778)
—
(6,338,778)
1,021,246
(1,344,582)
(133,207)
10,214,741
(13,441,813)
(6,456,612)
23,803,108
(27,174,249)
(1,296,712)
(1,116,057)
—
(21,014,482)
(10,799,741)
584,940
—
10,037
(12,361)
(10,217,125)
—
—
(10,217,125)
(80,496)
—
(10,297,621)
(3,870,358)
—
(32,341,319)
(8,538,211)
1,541,825
(145,858)
63,179
82,786
(6,996,279)
—
28,676
(6,967,603)
—
—
(6,967,603)
(129,181)
(10,000)
(1,616,970)
(595,724)
80,783
—
(11,547)
1,373
(525,115)
—
—
(525,115)
—
26,413
(498,702)
(0.28)
(0.28)
(910,508)
—
(910,508)
3,419,103
(3,903,337)
(186,261)
(555,942)
—
(4,645,540)
(1,226,437)
221,469
(20,951)
9,075
11,891
(1,004,953)
—
4,119
(1,000,834)
—
—
(1,000,834)
(3.47)
(3.47)
(1.51)
(1.51)
(0.22)
(0.22)
1,764,799,346
1,764,799,346
2,968,319,549
2,968,319,549
4,627,278,394
4,627,278,394
4,627,278,394
4,627,278,394
(47,681)
(572,796)
1,058,884
(9,158,241)
412,447
(6,555,156)
59,244
(941,590)
Table of Contents
PINDUODUO INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ (DEFICITS)/EQUITY
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
Number of
ordinary
shares
Note
Ordinary
shares
RMB
Additional
paid-in
capital
RMB
Balance as of January 1, 2017
Net loss
Foreign currency translation difference
Repurchase and cancellation of Class B
ordinary shares
Contribution from a holder of
convertible preferred shares
Share-based compensation
Balance as of December 31, 2017
1,815,200,000
—
—
(56,430,180)
—
—
1,758,769,820
13
13
17
56
—
—
(2)
—
—
54
21,531
—
—
2
26,413
13,380
61,326
Accumulated
other
comprehensive Accumulated
income/(loss)
RMB
Total
shareholders’
deficits
RMB
(426,278)
(525,115)
(47,681)
deficits
RMB
(472,445)
(525,115)
—
24,580
—
(47,681)
—
(32,677)
(32,677)
—
—
(23,101)
—
—
(1,030,237)
26,413
13,380
(991,958)
Number of
ordinary
shares
Note
Ordinary
shares
RMB
Additional
paid-in
capital
RMB
Balance as of January 1, 2018
Net loss
Foreign currency translation difference
Deemed distribution to certain holders
of convertible preferred shares
Conversion of convertible preferred
shares to ordinary shares
Initial public offering
Share-based compensation
Balance as of December 31, 2018
13
13
15
17
1,758,769,820
—
—
—
2,075,502,060
366,943,308
254,473,500
4,455,688,688
54
—
—
—
67
13
8
142
Accumulated
other
comprehensive Accumulated
(loss)/income
RMB
deficits
RMB
(23,101)
—
1,058,884
(1,030,237)
(10,217,125)
—
Total
shareholders’
(deficits)/equity
RMB
(991,958)
(10,217,125)
1,058,884
—
(80,496)
(80,496)
61,326
—
—
—
10,950,438
11,523,618
6,579,145
29,114,527
—
—
—
1,035,783
—
—
—
(11,327,858)
10,950,505
11,523,631
6,579,153
18,822,594
Balance as of January 1, 2019
Net loss
Foreign currency translation difference
Follow-on offering
Equity component of convertible bonds
Shares issued to depository bank
Restricted share units vested
Settlement of share-based
compensation with shares held by
depository bank
Share-based compensation
Balance as of December 31, 2019
Balance as of December 31, 2019
(US$)
20
20
17
Number of
ordinary
shares
Note
4,455,688,688
—
—
193,740,000
—
600,000
(567,636)
Ordinary
shares
RMB
142
—
—
6
—
—
—
Additional
paid-in
capital
RMB
29,114,527
—
—
7,993,822
1,827,894
—
—
Accumulated
other
comprehensive Accumulated
income
RMB
1,035,783
—
412,447
—
—
—
—
deficits
RMB
(11,327,858)
(6,967,603)
—
—
—
—
—
Total
shareholders'
equity
RMB
18,822,594
(6,967,603)
412,447
7,993,828
1,827,894
—
—
567,636
—
4,650,028,688
—
—
148
—
2,557,706
41,493,949
—
—
1,448,230
—
—
(18,295,461)
—
2,557,706
24,646,866
4,650,028,688
21
5,960,233
208,025
(2,627,979)
3,540,300
F-9
Table of Contents
PINDUODUO INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
CASH FLOW FROM OPERATING ACTIVITIES
Net loss
Interest expense
Provision for prepayments made on behalf of merchants
Depreciation and amortization
Lease expense to reduce right-of-use assets
Impairment of a long-term investment
Interest and investment gain, net
Loss on disposal of property and equipment
Share-based compensation
Foreign exchange gain
Share of results of equity investees
Changes in operating assets and liabilities:
Receivables from online payment platforms
Amounts due from related parties
Prepayments and other current assets
Customer advances and deferred revenues
Amounts due to related parties
Payable due to merchants
Accrued expenses and other liabilities
Merchant deposits
Right-of-use assets
Lease liabilities
Other non-current assets
Other non-current liabilities
Net cash provided by operating activities
CASH FLOW FROM INVESTING ACTIVITIES
Purchase of short-term investments
Proceeds from sales of short-term investments
Purchase of long-term investments
Proceeds from disposal of a long-term investment
Purchase of property, equipment and software
Proceeds from disposal of property and equipment
Loans to related parties
Repayments from related parties
(Loans to)/Repayments from third parties
Net cash provided by/(used in) investing activities
CASH FLOW FROM FINANCING ACTIVITIES
Proceeds from the initial public offering
Costs incurred for the initial public offering
Proceeds from follow-on offering
Costs incurred for the follow-on offering
Proceeds from issuance of convertible preferred shares
Costs incurred for the issuance of convertible preferred shares
Repurchase of Class B ordinary shares
Proceeds from issuance of convertible bonds
Costs incurred for the issuance of convertible bonds
Proceeds from short-term borrowings
Net cash provided by financing activities
Effect of exchange rate changes on cash, cash equivalents and restricted cash
Increase in cash, cash equivalents and restricted cash
Cash, cash equivalents and restricted cash at beginning of year
Cash, cash equivalents and restricted cash at end of year
Supplement disclosure of cash flow information :
Interest income received
Supplement disclosure of non-cash operating activities :
Recognition of right-of-use assets and lease liabilities
Supplement disclosure of non-cash investing activities :
Purchase of property, equipment and software included in accrued expenses and other liabilities
Acquisition of intangible asset
Reconciliation of cash, cash equivalents and restricted cash:
Cash and cash equivalents
Restricted cash
Total cash, cash equivalents and restricted cash in the statements of cash flows
F-10
2017
RMB
(525,115)
—
—
2,265
—
10,000
(2,573)
64
13,380
—
—
(77,891)
(350,265)
(87,614)
54,299
51,081
8,721,721
318,363
1,558,613
—
—
—
—
9,686,328
(1,393,000)
1,633,000
—
—
(8,921)
362
(159,790)
—
—
71,651
—
—
—
—
1,446,906
(15,369)
(32,677)
—
—
—
1,398,860
(47,681)
11,109,158
1,319,843
12,429,001
For the years ended December 31,
2019
2018
RMB
RMB
US$
(10,217,125)
—
2,155
497,003
—
—
(78,267)
13
6,841,573
—
—
(159,413)
(576,121)
(790,732)
135,029
402,056
7,437,415
1,864,153
2,410,188
—
—
—
—
7,767,927
(7,516,370)
50,000
(184,637)
5,000
(27,331)
39
—
159,790
(35,000)
(7,548,509)
11,879,944
(356,313)
—
—
5,824,568
(3,842)
—
—
—
—
17,344,357
546,910
18,110,685
12,429,001
30,539,686
(6,967,603)
145,858
11,782
637,831
73,206
—
(209,580)
175
2,557,706
(5,380)
(28,676)
(803,388)
(886,863)
12,449
414,488
1,024,779
12,650,833
2,648,869
3,652,639
(590,394)
544,327
(69,471)
7,389
14,820,976
(52,451,615)
24,797,630
(214,100)
—
(27,436)
475
(459,632)
—
35,000
(28,319,678)
—
—
8,194,597
(200,769)
—
—
—
7,073,101
(109,220)
897,022
15,854,731
450,142
2,806,171
30,539,686
33,345,857
(1,000,834)
20,951
1,692
91,619
10,515
—
(30,104)
25
367,392
(773)
(4,119)
(115,399)
(127,390)
1,788
59,537
147,200
1,817,180
380,486
524,669
(84,805)
78,188
(9,979)
1,061
2,128,900
(7,534,202)
3,561,957
(30,754)
—
(3,941)
68
(66,022)
—
5,027
(4,067,867)
—
—
1,177,080
(28,839)
—
—
—
1,015,987
(15,688)
128,850
2,277,390
64,659
403,082
4,386,751
4,789,833
52,150
433,390
1,211,443
174,013
—
198
—
—
632,507
90,854
1,319
2,852,370
2,160
—
310
—
3,058,152
9,370,849
12,429,001
14,160,322
16,379,364
30,539,686
5,768,186
27,577,671
33,345,857
828,548
3,961,285
4,789,833
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
1. Organization
Pinduoduo Inc. (the ‘‘Company’’) was incorporated in the Cayman Islands on April 20, 2015 under the Cayman
Islands Companies Law as an exempted company with limited liability. The Company through its consolidated
subsidiaries, variable interest entity (the ‘‘VIE’’) and the subsidiaries of the VIE (collectively, the ‘‘Group’’) are
principally engaged in the merchandise sales and the provision of online marketplace to help merchants leverage the
power of the internet to engage with their customers in the People’s Republic of China (the ‘‘PRC’’ or ‘‘China’’). Due
to the PRC legal restrictions on foreign ownership and investment in such business, the Company conducts its primary
business operations through its VIE and subsidiaries of the VIE. The Company is ultimately controlled by Mr. Zheng
Huang (the ‘‘Founder’’) since its establishment.
As of December 31, 2019, the details of the Company’s major subsidiaries, consolidated VIE and the subsidiaries of
the VIE are as follows:
Entity
Date of
incorporation
Place of
incorporation
Percentage of
ownership by the
Company
Direct Indirect
Principal
activities
Subsidiaries:
HongKong Walnut Street Limited ("Walnut HK")
Hangzhou Weimi Network Technology Co., Ltd.
("Hangzhou Weimi" or the "WFOE")
April 28, 2015 Hong Kong
May 28, 2015
PRC
Walnut Street (Shanghai) Information Technology Co.,
January 25,2018
Ltd.
Shenzhen Qianhai Xinzhijiang Information Technology
April 25, 2018
Co., Ltd. (“Xinzhijiang”)
PRC
PRC
VIE:
Hangzhou Aimi Network Technology Co., Ltd.
("Hangzhou Aimi" or the "VIE")
VIE’s subsidiary:
Shanghai Xunmeng Information Technology Co., Ltd.
("Shanghai Xunmeng")
April 14, 2015
PRC
January 9, 2014
PRC
100 %
100 %
100 %
—
—
Holding company
Technology research
and development
Technology research
and development
100 %
— E-commerce platform
—
100 % E-commerce platform
—
100 % E-commerce platform
In June 2016, the Company obtained 100% equity interest in Shanghai Xunmeng which was controlled by the Founder
since its establishment. The transaction undertaken by the Company and the Founder to restructure the Group was
accounted for as a legal reorganization of entities under common control in a manner similar to a pooling of interest
using historical cost. The accompanying consolidated financial statements have been prepared as if the current
corporate structure had been in existence throughout the periods presented.
The VIE agreements
The PRC laws and regulations currently place certain restrictions on foreign ownership of companies that engage in
internet content and other restricted businesses. To comply with PRC laws and regulations, the Group conducts the
majority of its business in China through the VIE and subsidiaries of the VIE. Despite the lack of technical majority
ownership, the Company has effective control of the VIE through a series of contractual arrangements (the
"Contractual Agreements’’) and a parent-subsidiary relationship exists between the Company and the VIE. The equity
interests of the VIE are legally held by PRC individuals (the ‘‘Nominee Shareholders’’). Through the Contractual
Agreements, the Nominee Shareholders of the VIE effectively assigned all of their voting rights underlying their
equity interests in the VIE to the Company, via the WFOE, and therefore, the Company has the power to direct the
activities of the VIE that most significantly impact its economic performance. The Company also has the right to
receive economic benefits and obligations to absorb losses from the VIE, via the WFOE, that potentially could be
significant to the VIE. Based on the above, the Company consolidates the VIE in accordance with SEC Regulation
SX-3A-02 and ASC810-10, Consolidation: Overall.
F-11
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
1. Organization (Continued)
The VIE agreements (Continued)
The following is a summary of the Contractual Agreements:
Exclusive Option Agreements Pursuant to the Exclusive Option Agreements entered into among the Nominee
Shareholders, the VIE and the WFOE, the Nominee Shareholders granted to the WFOE or its designees proxy of
shareholders rights and voting rights of their respective equity interests in the VIE. The WFOE has the sole discretion
as to when to exercise the options, whether in part or full. The exercise price of the options to purchase all or part of
the equity interests in the VIE will be the minimum amount of consideration permitted by the applicable PRC laws.
Any proceeds received by the Nominee Shareholders from the exercise of the options shall be remitted to the WFOE
or its designated party, to the extent permitted under PRC laws. The Exclusive Option Agreements will remain in
effect until all the equity interests in VIE held by Nominee Shareholders are transferred to the WFOE or its designated
party. The WFOE may terminate the Exclusive Option Agreements at its sole discretion, whereas under no
circumstances may the VIE or the Nominee Shareholders terminate the agreements.
Equity Pledge Agreement Pursuant to the Equity Pledge Agreement entered into among the WFOE (the ''Pledge
Agreement''), the Nominee Shareholders and the VIE, the Nominee Shareholders pledged all of their equity interests in
the VIE to the WFOE as collateral to secure their obligations under the Contractual Agreements. The Nominee
Shareholders further undertake that they will remit any distributions in connection with such shareholders’ equity
interests in the VIE to the WFOE, to the extent permitted by PRC laws. If the VIE or any of their Nominee
Shareholders breach any of their respective contractual obligations under the above agreements, the WFOE, as the
pledgee, will be entitled to certain rights, including the right to sell, transfer or dispose of the pledged equity interest.
The Nominee Shareholders of the VIE agree not to create any encumbrance on or otherwise transfer or dispose of their
respective equity interest in the VIE, without the prior consent of the WFOE. The Equity Pledge Agreement will be
valid until the VIE and the shareholders fulfill all the contractual obligations under the Contractual Agreements in full
and the pledged equity interests have been transferred to the WFOE and/or its designee.
Shareholders’ Voting Rights Proxy Agreement Pursuant to the Shareholders’ Voting Rights Proxy Agreement
entered into among the Nominee Shareholders, the VIE and the WFOE (the ''Proxy Agreement''), the Nominee
Shareholders authorized the WFOE or its designated party to (1) act on behalf of the Nominee Shareholders as
exclusive agent and attorney with all respect to all matters concerning the shareholding including but not limited to
attend shareholders’ meetings of the VIE; (2) exercise all the shareholders’ rights, including voting rights; and
(3) designate and appoint on behalf of each shareholder and the senior management members of the VIE. The proxy
remains irrevocable and continuously valid from the date of execution so long as each Nominee Shareholder remains
as a shareholder of the VIE. The proxy agreements were subsequently reassigned to the Company.
Exclusive Consulting and Services Agreement Pursuant to the Exclusive Consulting and Services Agreement
(the ''Consulting and Services Agreement''), WFOE retains exclusive right to provide to the VIE the technical support
and consulting services, including but not limited to, technology development and maintenance service, marketing
consulting service and administrative consulting service. WFOE owns the intellectual property rights developed in the
performance of the agreement. In exchange for these services, WFOE is entitled to charge the VIE annual service fees
which typically amount to what would be substantially all of the VIE’s pre-tax profits, resulting in a transfer of
substantially all of the profits from the VIE to the WFOE. The term of the agreement is 10 years, expiring on June 5,
2025, which will be automatically renewed every ten-year thereafter if the WFOE does not provide notice of
termination to the Nominee Shareholders three months prior to expiration.
F-12
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
1. Organization (Continued)
The VIE agreements (Continued)
Financial support undertaking letter The Company and the VIE entered into a financial support undertaking letter
pursuant to which, the Company is obligated and hereby undertakes to provide unlimited financial support to the VIE,
to the extent permissible under the applicable PRC laws and regulations, whether or not any such operational loss is
actually incurred. The Company will not request repayment of the loans or borrowings if the VIE or its shareholders
do not have sufficient funds or are unable to repay.
In the opinion of the Company’s management and PRC counsel, (i) the ownership structure of the Group, including its
subsidiaries, the VIE and the subsidiaries of the VIE, is not in violation with any applicable PRC laws and (ii) each of
the VIE agreements is legal, valid, binding and enforceable to each party of such agreements in accordance with its
terms and applicable PRC Laws.
However, uncertainties in the PRC legal system could cause the relevant regulatory authorities to find the current
Contractual Agreements and businesses to be in violation of any existing or future PRC laws or regulations. If the
Company, the WFOE or any of its current or future VIE are found in violation of any existing or future laws or
regulations, or fail to obtain or maintain any of the required permits or approvals, the relevant PRC regulatory
authorities would have broad discretion in dealing with such violations, which may include, but not limited to,
revocation of business and operating licenses, being required to discontinue or restrict its business operations,
restriction of the Group’s right to collect revenues, being required to restructure its operations, imposition of additional
conditions or requirements with which the Group may not be able to comply, or other regulatory or enforcement
actions against the Group that could be harmful to its business. The imposition of any of these or other penalties may
result in a material and adverse effect on the Group’s ability to conduct its business. In addition, if the imposition of
any of these penalties causes the Company to lose the rights to direct the activities of the VIE or the right to receive
their economic benefits, the Company would no longer be able to consolidate the VIE.
In addition, if the VIE or the Nominee Shareholders fail to perform their obligations under the Contractual
Agreements, the Group may have to incur substantial costs and expend resources to enforce the primary beneficiary’
rights under the contracts. The Group may have to rely on legal remedies under PRC laws, including seeking specific
performance or injunctive relief and claiming damages, which may not be effective. All of the Contractual Agreements
are governed by PRC laws and provide for the resolution of disputes through arbitration in the PRC. Accordingly,
these contracts would be interpreted in accordance with PRC laws and any disputes would be resolved in accordance
with PRC legal procedures. The legal system in PRC is not as developed as in other jurisdictions, such as the
United States. As a result, uncertainties in the PRC legal system could limit the Group’s ability to enforce these
contractual arrangements. Under PRC laws, rulings by arbitrators are final, parties cannot appeal the arbitration results
in courts, and prevailing parties may only enforce the arbitration awards in PRC courts through arbitration award
recognition proceedings, which would incur additional expenses and delay. In the event the Group is unable to enforce
the Contractual Agreements, the primary beneficiary may not be able to exert effective control over its VIE, and the
Group’s ability to conduct its business may be negatively affected.
The VIE and its subsidiaries contributed to 100%, 77.3% and 58.5% of the Group’s consolidated revenues for
the years ended December 31, 2017, 2018 and 2019, respectively. As of December 31, 2018 and 2019, the VIE and its
subsidiaries accounted for an aggregate of 53.1% and 54.1%, respectively of the consolidated total assets, and 96.9%
and 86.4%, respectively of the consolidated total liabilities.
F-13
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
1. Organization (Continued)
Other revenue-producing assets held by the VIE and its subsidiaries mainly include licenses, such as the internet
content provision license and internally-developed intangible assets including trademarks, patents, copyrights and
domain names.
The following tables represent the financial information for the VIE as of December 31, 2018 and 2019 and for
the years ended December 31, 2017, 2018 and 2019 before eliminating the inter-company balances and transactions
between the VIE, the subsidiaries of the VIE and other entities within the Group:
2018
RMB
As of December 31,
2019
RMB
US$
ASSETS
Current assets
Cash and cash equivalents
Restricted cash
Receivables from online payment platforms
Short-term investments
Amounts due from related parties (i)
Amounts due from Group companies
Prepayments and other current assets
Total current assets
Non-current assets
Property, equipment and software, net
Right-of-use assets
Other non-current assets
Total non-current assets
Total assets
LIABILITIES
Current liabilities
Amounts due to related parties (i)
Amounts due to Group companies
Customer advances and deferred revenues
Payable to merchants
Accrued expenses and other liabilities
Merchant deposits
Short-term borrowings
Lease liabilities
Total current liabilities
Lease liabilities
Total non-current liabilities
Total liabilities
3,529,316
2,816,894
16,379,364 27,528,793
1,050,974
6,560,665
2,360,267
3,337,273
247,586
1,300,000
1,018,963
565,101
441,590
295,377
23,481,920 43,950,243
404,622
3,954,264
150,963
942,381
339,031
479,369
42,428
6,313,058
16,578
—
—
16,578
27,719
452,883
60,306
540,908
23,498,498 44,491,151
3,982
65,053
8,662
77,697
6,390,755
2018
RMB
As of December 31,
2019
RMB
US$
1,500,951
4,188,273
458,147
1,575,534
190,382
1,502,892
5,393,858
605,969
17,275,934 29,657,227
3,420,728
7,840,912
898,748
90,523
49,410,857
382,673
382,673
25,189,221 49,793,530
—
—
25,189,221
—
—
215,877
774,779
87,042
4,259,994
491,358
1,126,277
129,097
13,003
7,097,427
54,968
54,968
7,152,395
i) Information with respect to related parties is discussed in Note 19.
F-14
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
1. Organization (Continued)
Net revenues from
Group companies
External
Net revenues
Net loss
For the years ended December 31,
2017
RMB
2018
RMB
2019
RMB
US$
207,570
1,744,076
1,951,646
(8,924)
2017
RMB
298,415
2,244,429
322,392
10,136,874 17,630,903 2,532,521
10,435,289 19,875,332 2,854,913
(518,782)
(1,552,789)
(3,611,656)
For the years ended December 31,
2019
2018
RMB
US$
RMB
8,984,498 11,139,572 1,600,099
(753,978)
(5,249,046)
(1,147,101)
653,061
4,546,481
507,767
8,345,164 10,437,007 1,499,182
10,391,383
Net cash generated from operating activities
88,404
Net cash generated from /(used in) investing activities
Net cash provided by financing activities
200,000
Net increase in cash, cash equivalents and restricted cash 10,679,787
There are no consolidated VIE’s assets that are pledged or collateralized for the VIE’s obligations and which can only
be used to settle the VIE’s obligations, except for registered capital and the PRC statutory reserves. Relevant PRC laws
and regulations restrict the VIE from transferring a portion of its net assets, equivalent to the balance of their statutory
reserves and its share capital, to the Company in the form of loans and advances or cash dividends. Please refer to
Note 21 for disclosure of the restricted net assets. As the VIE is incorporated as a limited liability company under the
PRC Company Law, creditors of the VIE do not have recourse to the general credit of the Company for any of the
liabilities of the VIE. There were no other pledges or collateralization of the VIE’s assets.
2. Summary of Significant Accounting Policies
(a) Basis of presentation
The accompanying consolidated financial statements have been prepared in accordance with the accounting principles
generally accepted in the United States of America (“US GAAP”).
(b) Principles of consolidation
The consolidated financial statements include the financial statements of the Company, its subsidiaries, the VIE and
the subsidiaries of the VIE. All significant inter-company transactions and balances between the Company, its
subsidiaries, the VIE and subsidiaries of the VIE have been eliminated upon consolidation.
F-15
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(c) Use of estimates
The preparation of financial statements in conformity with US GAAP requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities at the balance sheet dates and revenues and
expenses during the reporting periods. Significant accounting estimates reflected in the Group’s consolidated financial
statements include, but not limited to provision for prepayments made on behalf of merchants, economic lives and
impairment of long-lived assets, valuation of short-term and long-term investments, valuation allowance for deferred
tax assets, uncertain tax position, valuation for share-based compensation, liability component of convertible bonds
and incremental borrowing rates for operating lease liabilities. Changes in facts and circumstances may result in
revised estimates. Actual results could differ from those estimates, and as such, differences may be material to the
consolidated financial statements.
(d) Foreign currency
The functional currency of the Company and its overseas subsidiaries is the US$. The Company’s PRC subsidiaries,
the VIE and subsidiaries of the VIE determined their functional currencies to be RMB based on the criteria of
ASC 830, Foreign Currency Matters. The Group uses the RMB as its reporting currency.
Transactions denominated in foreign currencies are re-measured into the functional currency at the exchange rates
prevailing on the transaction dates. Monetary assets and liabilities denominated in foreign currencies are re-measured
at the exchange rates prevailing at the balance sheet date. Non-monetary items that are measured in terms of historical
cost in foreign currency are re-measured using the exchange rates at the dates of the initial transactions. Exchange
gains and losses are included in the consolidated statements of comprehensive loss.
The Company uses the average exchange rate for the year and the exchange rate at the balance sheet date to translate
the operating results and financial position, respectively. Translation differences are recorded in accumulated other
comprehensive income/(loss), a component of shareholders’ (deficits)/ equity.
(e) Convenience translation
Amounts in US$ are presented for the convenience of the reader and are translated at the noon buying rate of US$1.00
to RMB6.9618 on December 31, 2019, the last business day in December 2019, as published on the website of the
United States Federal Reserve Board. No representation is made that the RMB amounts could have been, or could be,
converted into US$ at such rate.
(f) Cash and cash equivalents
Cash and cash equivalents consist of cash on hand and highly liquid investments which are unrestricted as to
withdrawal or use and have original maturities of three months or less when purchased.
(g) Restricted cash
Restricted cash mainly represents cash received from consumers and reserved in a bank supervised account for
payments to merchants.
F-16
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(h) Short-term investments
All highly liquid investments with original maturities of greater than three months but less than twelve months, are
classified as short-term investments. Investments that are expected to be realized in cash during the next twelve
months are also included in short-term investments.
The Group accounts for short-term debt investments in accordance with ASC Topic 320 (“ASC 320”), Investments —
Debt Securities, and short-term equity investments in accordance with ASC Topic 321 (“ASC 321”), Investments —
Equity Securities.
Short-term debt investments include time deposits and wealth management products in financial institutions that the
Group has positive intent and ability to hold to maturity, both of which are categorized as “held to maturity”. Wealth
management products with the intention to sell in the near term are classified as trading securities and measured at fair
value. The Company also holds marketable equity securities in a listed company and measures it at fair value.
Any realized gains or losses on the sale of the short-term investments are determined on a specific identification
method and are reflected in earnings during the period in which gains or losses are realized. Realized and unrealized
gains and losses and interest income from the short-term investments are recorded in “Interest and investment gain,
net” in the consolidated statements of comprehensive loss.
(i) Property, equipment and software, net
Property, equipment and software are stated at cost and are depreciated and amortized using the straight-line method
over the estimated useful lives of the assets, as follows:
Category
Computer and office equipment
Purchased software
Leasehold improvements
Estimated useful life
3 years
3-5 years
Over the shorter of lease terms or the estimated useful lives of the assets
Repair and maintenance costs are charged to expense as incurred, whereas the costs of renewals and betterments that
extend the useful lives of property, equipment and software are capitalized as additions to the related assets.
Retirements, sales and disposals of assets are recorded by removing the cost and accumulated depreciation from the
asset and accumulated depreciation accounts with any resulting gain or loss reflected in the consolidated statements of
comprehensive loss.
Direct costs that are related to the construction of property, equipment and software and incurred in connection with
bringing the assets to their intended use are capitalized as construction in progress. Construction in progress is
transferred to specific property, equipment and software, and the depreciation of these assets commences when the
assets are ready for their intended use.
F-17
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(j) Equity method investments
The Group accounts for its investments in common stock or in-substance common stock in entities in which it can
exercise significant influence but does not own a majority equity interest or control using the equity method of
accounting in accordance with ASC Subtopics 323-10 ("ASC 323-10"), Investments-Equity Method and Joint
Ventures: Overall. The Group applies the equity method of accounting that is consistent with ASC 323-10 in limited
partnerships which the Group has significant influence. After the date of investment, the Group subsequently adjusts
the carrying amount of the investment to recognize the Group's proportionate share of each equity investees’ net
income or loss into earnings. The Group evaluates the equity method investments for impairment under ASC 323-10.
An impairment loss on the equity method investments is recognized in earnings when the decline in value is
determined to be other-than-temporary.
(k) Impairment of long-lived assets other than goodwill
The Group evaluates its long-lived assets, including fixed assets and intangible assets with finite lives, for impairment
whenever events or changes in circumstances, such as a significant adverse change to market conditions that will
impact the future use of the assets, indicate that the carrying amount of an asset may not be fully recoverable. When
these events occur, the Group evaluates the recoverability of long-lived assets by comparing the carrying amounts of
the assets to the future undiscounted cash flows expected to result from the use of the assets and their eventual
disposition. If the sum of the expected undiscounted cash flows is less than the carrying amounts of the assets, the
Group recognizes an impairment loss based on the excess of the carrying amounts of the assets over their fair value.
Fair value is generally determined by discounting the cash flows expected to be generated by the assets, when the
market prices are not readily available.
For all periods presented, there were no impairment of any of the Group’s long-lived assets.
(l) Fair value of financial instruments
The Group’s financial instruments include cash and cash equivalents, restricted cash, receivables from payment
platforms, amount due from/to related parties, prepayment made on behalf of merchants, merchant deposits, customer
advances, payables to merchants, short-term investments and convertible bonds. For the aforementioned financial
instruments included in current assets and liabilities, except for ones measured at fair value, their carrying amount
approximated to their respective fair values because of the general short maturities. The fair value of convertible bonds
that are not reported at fair value are disclosed in Note 14.
The Group applies ASC 820, Fair Value Measurements and Disclosures (''ASC 820''). ASC 820 defines fair value,
establishes a framework for measuring fair value and expands disclosures about fair value measurements. ASC 820
requires disclosures to be provided on fair value measurement.
ASC 820 establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value
as follows:
Level 1 — Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets.
Level 2 — Other inputs that are directly or indirectly observable in the marketplace.
F-18
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(l) Fair value of financial instruments (Continued)
Level 3 — Unobservable inputs which are supported by little or no market activity.
ASC 820 describes three main approaches to measuring the fair value of assets and liabilities: (1) market approach;
(2) income approach; and (3) cost approach. The market approach uses prices and other relevant information generated
from market transactions involving identical or comparable assets or liabilities. The income approach uses valuation
techniques to convert future amounts to a single present value amount. The measurement is based on the value
indicated by current market expectations about those future amounts. The cost approach is based on the amount that
would currently be required to replace an asset.
(m) Revenue recognition
The Group through its platform primarily offers online marketplace services that enable third-party merchants to sell
their products to consumers in China. Revenues from online marketplace services consist of online marketing services
revenues and transaction services fees. Payments for services are generally received before deliveries.
Effective January 1, 2018, the Group adopted ASU 2014-09, Revenue from contracts with Customers (Topic 606),
using the modified retrospective method applying to those contracts not yet completed as of January 1, 2018. There
were no changes made to the Company’s revenue recognition policy as a result of the adoption of Topic 606. Under
Topic 606, revenues are recognized when control of the promised services are transferred to the Group’s customers in
amounts that reflect the consideration the Group expects to be entitled to in exchange for those services. The Group
also evaluates whether it is appropriate to record the gross amounts of goods and services sold and the related costs, or
the net amounts earned as commissions.
The Group presents value added taxes (“VAT”) as reductions of revenues.
Online marketplace services
The Group charges fees for transaction services to merchants for sales transactions completed on the Group’s online
marketplace, where the Group does not take control of the products provided by the merchants at any point in the time
during the transactions and does not have latitude over pricing of the merchandise. Transaction services fee is
determined as a percentage based on the value of merchandise being sold by the merchants. Revenues related to
transaction services are recognized in consolidated statements of comprehensive loss at the time when the Group’s
service obligations to the merchants are determined to have been completed under each sales transaction upon the
consumers’ confirming the receipts of goods. Fees charged for transaction services are not refundable if and when
consumers return the merchandise to merchants.
The Group also entered into contractual agreements with certain merchants to provide online marketing services on the
Group’s online marketplace for which the Group receives service fees from merchants. Online marketing services
allow merchants to bid for keywords that match product listings appearing in search or browser results on the Group’s
online marketplace. Merchants prepay for online marketing services that are charged on a cost-per-click basis. The
Group provides the online marketing services on its own platforms without involvement of any other party. Under
ASC 606, the related revenues are recognized at a point of time when consumers click the merchants’ product listings
when services are completed by the Group for the merchants. The positioning of such listings and the price for such
positioning are determined through an online auction system, which facilitates price discovery through a market-based
mechanism.
F-19
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(m) Revenue recognition (Continued)
The Group provides sales incentives to certain merchants that entitle them to receive price reduction on the online
marketplace services by meeting certain requirements. The Group nets the sales incentives against online marketplace
services revenues.
In order to promote its online marketplace and attract more registered consumers, the Group at its own discretion
offers various forms of incentives, for example, coupons, credits and discounts that are not specific to any merchant, to
consumers that are not customers of the Group. Evaluation of the varying features of different incentive programs were
made to determine that incentives offered to consumers are generally not considered as payments to customers. Such
evaluation included the consideration of whether the incentives represent implicit obligation to consumers on behalf of
merchants and if so, whether the consumers would be considered as customers of the Group.
Coupons and credits redeemable for coupons can only be used for future purchases of eligible merchandise offered on
the Group’s online marketplace to reduce purchase price. As the consumers are required to make future purchases of
the merchants’ merchandise to redeem the coupons, the Group recognizes the amounts of redeemed coupons primarily
as marketing expenses when future purchases are made. Discounts provided to consumers are recognized as marketing
expenses when the related transaction services revenues are recognized.
During the years ended December 31, 2018 and 2019, the Group also issued to consumers at its discretion, cash
redeemable credits upon their completion of certain actions unrelated to the purchases of any specific merchant
products on the Group’s online marketplace. As the credits were redeemable for cash, the Group accrued for the
related costs in marketing expenses based on the cash redemption value of each credit as it is issued, assuming all
credits will be redeemed. As of December 31, 2018 and 2019, the amount of outstanding credits were immaterial.
(n) Costs of revenues
Costs of online marketplace services consist primarily of payment processing fees paid to third party online payment
platforms, costs associated with the operation of the Group’s platform, such as call center and merchant support costs,
bandwidths and server costs, amortization, depreciation and maintenance costs, staff costs and share-based
compensation expenses, surcharges and other expenses directly attributable to the online marketplace services.
(o) Advertising expenditures
Advertising expenditures are expensed when incurred and are included in sales and marketing expenses. Total amount
of advertising expenditures and incentive programs recognized in sales and marketing expenses were RMB1,259,610,
RMB12,867,833 and RMB25,867,772 (US$3,715,673) for the years ended December 31, 2017, 2018 and 2019,
respectively.
(p) Research and development expenses
Research and development expenses include payroll, employee benefits, and other operating expenses associated with
research and platform development. Research and development expenses also include rent, depreciation and other
related expenses. To date, expenditures incurred between when the application has reached the development stage and
when it is substantially complete and ready for its intended use have been inconsequential and, as a result, the
Company did not capitalize any software development costs in the accompanying consolidated financial statements.
F-20
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(q) Leases
The Group adopted ASU No. 2016-02, Leases (Topic 842) ("ASU 2016-02"), effective January 1, 2019 using the
modified retrospective method and did not restate comparable periods. The Group elected the package of practical
expedients permitted under the transition guidance, which allowed the Group to carry forward the historical lease
classification for any expired or existing contract and the accounting for the initial direct costs on those leases on the
adoption date. The Group also elected the practical expedient of the short-term lease exemption for contracts with
lease terms of 12 months or less.
The Group as the lessee determines if an arrangement is a lease at inception. Leases are classified as operating or
finance leases in accordance with the recognition criteria in ASC 842-20-25. The Group's lease portfolio consisted
entirely of operating leases as of January 1 and December 31, 2019. The Group's leases do not contain any residual
value guarantees or material restrictive covenants.
At the commencement date of an operating lease, the Group records a right-of-use ("ROU") asset and lease liability
based on the present value of the lease payments over the lease term. Variable lease payments not dependent on an
index or rate are excluded from the ROU asset and lease liability calculations and are recognized in expense in the
period which the obligation for those payments is incurred. As the rate implicit in the Group's lease is not typically
readily available, the Group uses an incremental borrowing rate based on the information available at the lease
commencement date in determining the present value of lease payments. This incremental borrowing rate reflects the
fixed rate at which the Group could borrow on a collateralized basis the amount of the lease payments in the same
currency, for a similar term, in a similar economic environment. ROU assets include any lease prepayments and are
reduced by lease incentives. Operating lease expense for lease payments is recognized on a straight-line basis over the
lease term. Lease terms are based on the non-cancelable term of the lease and may contain options to extend the lease
when it is reasonably certain that the Group will exercise that option.
The cumulative effects of changes made to the Group's condensed consolidated balance sheet on January 1, 2019 for
the adoption of ASU 2016-02 were as follows:
Assets:
Prepayments and other current assets
Right-of-use assets
Liabilities:
Current portion of lease liabilities
Non-current portion of lease liabilities
Accrued expenses and other liabilities
Balance at
December
31, 2018
RMB
Adjustments
RMB
Balance at
January 1,
2019
RMB
US$
953,989
—
(2,768)
221,521
951,221
221,521
136,634
31,820
—
—
2,225,667
55,180
174,681
(11,108)
55,180
174,681
2,214,559
7,926
25,091
318,101
As of January 1, 2019, the difference between the lease liabilities and right-of-use assets related to the reversal of
existing deferred rent and prepaid rent balances is RMB11,108 (US$1,596) and RMB2,768 (US$398), respectively.
The adoption of the standard did not impact the Company's consolidated statements of comprehensive loss and cash
flows.
F-21
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(r) Income taxes
The Group follows the liability method of accounting for income taxes in accordance with ASC 740 (‘‘ASC 740’’),
Income Taxes. Under this method, deferred tax assets and liabilities are determined based on the difference between
the financial reporting and tax bases of assets and liabilities using enacted tax rates that will be in effect in the period
in which the differences are expected to reverse. The Group records a valuation allowance to offset deferred tax assets
if based on the weight of available evidence, it is more-likely-than-not that some portion, or all, of the deferred tax
assets will not be realized. The effect on deferred taxes of a change in tax rate is recognized in tax expense in the
period that includes the enactment date of the change in tax rate.
The Group accounted for uncertainties in income taxes in accordance with ASC 740. Interest and penalties related to
unrecognized tax benefit recognized in accordance with ASC 740 are classified in the consolidated statements of
comprehensive loss as income tax expenses.
(s) Share-based compensation
The Group applies ASC 718 (‘‘ASC 718’’), Compensation—Stock Compensation, to account for its employee share-
based payments. In accordance with ASC 718, the Group determines whether an award should be classified and
accounted for as a liability award or an equity award. All of the Group’s share-based awards to employees were
classified as equity awards. The Group measures the employee share-based compensation based on the fair value of
the award at the grant date. Expense is recognized using accelerated method over the requisite service period. The fair
value of share options at the time of grant is determined using the binomial-lattice option pricing model. In accordance
with ASU No. 2016-09, Compensation-Stock Compensation (Topic 718): Improvement to Employee Share-based
Payment Accounting, the Group elected to account for forfeitures as they occurred.
(t) Employee benefit expenses
As stipulated by the regulations of the PRC, full-time employees of the Group are entitled to various government
statutory employee benefit plans, including medical insurance, maternity insurance, workplace injury insurance,
unemployment insurance and pension benefits through a PRC government-mandated multi-employer defined
contribution plan. The Group is required to make contributions to the plan and accrues for these benefits based on
certain percentages of the qualified employees’ salaries.
(u) Comprehensive loss
Comprehensive loss is defined as the changes in equity of the Group during a period from transactions and other
events and circumstances excluding transactions resulting from investments by owners and distributions to owners.
Among other disclosures, ASC 220, Comprehensive Income, requires that all items that are required to be recognized
under current accounting standards as components of comprehensive income be reported in a financial statement that
is displayed with the same prominence as other financial statements. For each of the periods presented, the Group’s
comprehensive loss includes net loss and foreign currency translation difference and is presented in the consolidated
statements of comprehensive loss.
F-22
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
2. Summary of Significant Accounting Policies (Continued)
(v) Loss per share
Basic loss per share is computed by dividing net loss attributable to ordinary shareholders by the weighted average
number of ordinary shares outstanding during the period using the two-class method. Under the two-class method, net
loss is allocated between ordinary shares and other participating securities based on their participating rights. Diluted
loss per share is calculated by dividing net loss attributable to ordinary shareholders by the weighted average number
of ordinary and dilutive ordinary equivalent shares outstanding during the period. Ordinary equivalent shares consist
of shares issuable upon the exercise of share options and conversion of convertible bonds using the treasury stock
method. Ordinary equivalent shares are not included in the denominator of the diluted loss per share calculation when
inclusion of such shares would be anti-dilutive.
Basic and diluted loss per share are not reported separately for Class A ordinary shares or Class B ordinary shares
(the ''Ordinary Shares'') as each class of shares has the same rights to undistributed and distributed earnings.
(w) Segment reporting
The Group follows ASC 280, Segment Reporting. The Group’s Chief Executive Officer as the chief operating
decision-maker reviews the consolidated financial results when making decisions about allocating resources and
assessing the performance of the Group as a whole and hence, the Group has only one reportable segment. The Group
operates and manages its business as a single segment. As the Group’s long-lived assets are substantially all located in
the PRC and substantially all the Group revenues are derived from within the PRC, no geographical segments
are presented.
(x) Recent accounting pronouncements
The Company ceased to be an emerging growth company since December 31, 2018.
In June 2016, the FASB issued Accounting Standards Update ("ASU") 2016-13: Financial Instruments-Credit Losses
(Topic 326), which requires entities to measure all expected credit losses for financial assets held at the reporting date
based on historical experience, current conditions, and reasonable and supportable forecasts. This replaces the existing
incurred loss model and is applicable to the measurement of credit losses on financial assets measured at amortized
cost. Subsequently, the FASB issued ASU 2019-05, Financial Instruments-Credit Losses (Topic 326): Targeted
Transition Relief and ASU 2019-11 Codification Improvements to Topic 326, Financial Instruments-Credit losses. The
amendments in ASU 2016-13 update guidance on reporting credit losses for financial assets. ASU 2016-13 will be
effective for the Company beginning after January 1, 2020 including interim periods within the year. The Company
does not expect any material impact on its consolidated financial statements.
In August 2018, the FASB issued ASU No. 2018-13 (‘‘ASU 2018-13’’), Fair Value Measurement (Topic 820):
Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement. ASU 2018-13 modifies
the disclosure requirements for fair value measurements by removing, modifying, or adding certain disclosures. The
amendments in ASU 2018-13 will be effective for the Company beginning after January 1, 2020 including interim
periods within the year. The Company does not expect any material impact on its consolidated financial statements.
In January 2020, the FASB issued ASU 2020-01, Investments-Equity Securities (Topic 321), Investments- Equity
Method and Joint Ventures (Topic 323), and Derivatives and Hedging (Topic 815)—Clarifying the Interactions
between Topic 321, Topic 323, and Topic 815. This guidance addresses accounting for the transition into and out of the
equity method and provides clarification of the interaction of rules for equity securities, the equity method of
accounting, and forward contracts and purchase options on certain types of securities. This standard is effective for the
Company beginning January 1, 2021 including interim periods within the fiscal year. Early adoption is permitted. The
Company is still evaluating the impact on its consolidated financial statements.
F-23
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
3. Concentration of Risks
(a) Concentration of credit risk
Financial instruments that potentially subject the Group to significant concentration of credit risk consist primarily of
cash and cash equivalents, restricted cash, receivables from online payment platforms, amounts due from related
parties and short-term investments. As of December 31, 2018 and 2019, all of the Group’s cash and cash equivalents,
restricted cash and short-term investments were held at reputable financial institutions with high-credit ratings. In the
event of bankruptcy of one of these financial institutions, the Group may not be able to claim its cash and demand
deposits back in full. The Group continues to monitor the financial strength of the financial institutions. There has
been no recent history of default in relation to these financial institutions. Receivables from online payment platforms
and amounts due from related parties (Note 19), unsecured and denominated in RMB and US$, derived from
merchandise sales on the Group’s online marketplace to consumers, are exposed to credit risk. The risk is mitigated by
credit evaluations the Group performs on the selected online payment platforms that are highly reputable and market
leaders. There has been no default of payments from these online payment platforms.
(b) Business, customer, political, social and economic risks
The Group participates in a dynamic and competitive high technology industry and believes that changes in any of the
following areas could have a material adverse effect on the Group’s future financial position, results of operations or
cash flows: changes in the overall demand for services; changes in competitive landscape including potential new
entrants; advances and new trends in new technology; strategic relationships or customer relationships; regulatory
considerations; and risks associated with the Group’s ability to attract and retain employees necessary to support
its growth.
(i) Business supplier risk - there were no suppliers whose purchases individually represent greater than 10% of the
total purchases of the Group for the years ended December 31, 2018 and 2019.
(ii) Customer risk - there were no customers whose revenues individually represent greater than 10% of the total
revenues of the Group for the years ended December 31, 2018 and 2019.
(iii) Economic risk - the Group’s operations could be adversely affected by significant political, economic and social
uncertainties in the PRC. Although the PRC government has been pursuing economic reform policies for more than 20
years, no assurance can be given that the PRC government will continue to pursue such policies or that such policies
may not be significantly altered, especially in the event of a change in leadership, social or political disruption or
unforeseen circumstances affecting the PRC political, economic and social conditions. There is also no guarantee that
the PRC government’s pursuit of economic reforms will be consistent or effective.
(c) Foreign currency exchange rate risk
The Group is exposed to foreign currency exchange rate risk, which mainly affects the monetary assets denominated in
the currencies other than the functional currencies of the respective entities. From July 21, 2005, the RMB is permitted
to fluctuate within a narrow and managed band against a basket of certain foreign currencies. The
(depreciation)/appreciation of the US$ against RMB was approximately (5.8)%, 5.0% and 1.6% for the years ended
December 31, 2017, 2018 and 2019, respectively. The functional currency and the reporting currency of the Company
are the US$ and the RMB, respectively. Most of the Group’s revenues and costs are denominated in RMB, while a
portion of cash and cash equivalents and short-term investments, are denominated in US$. It is difficult to predict how
market forces or PRC or U.S. government policy may impact the exchange rate between the RMB and the US$in the
future.
F-24
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
3. Concentration of Risks (Continued)
(d) Currency convertibility risk
The Group transacts most of its business in RMB, which is not freely convertible into foreign currencies. On
January 1, 1994, the PRC government abolished the dual rate system and introduced a single rate of exchange as
quoted daily by the People’s Bank of China (the ''PBOC''). However, the unification of the exchange rates does not
imply that the RMB may be readily convertible into US$ or other foreign currencies. All foreign exchange transactions
continue to take place either through the PBOC or other banks authorized to buy and sell foreign currencies at the
exchange rates quoted by the PBOC. Approval of foreign currency payments by the PBOC or other institutions
requires submitting a payment application form together with suppliers’ invoices, shipping documents and signed
contracts.
4. Short-term Investments
Short-term investments classification as of December 31, 2018 and 2019 were shown as below:
2018
RMB
As of December 31,
2019
RMB
2019
US$
Debt securities:
Held-to-maturity
Trading
Equity securities:
Marketable
7,630,689 34,481,053 4,952,893
114,317
795,849
—
—
11,925
7,630,689 35,288,827
1,713
5,068,923
The gross unrecognized holding gain or loss on the held-to-maturity debt securities was nil and nil as of December 31,
2018 and 2019, respectively.
The cost of trading debt securities was nil and RMB795,849 (US$114,317), with gross unrealized gain or loss of nil
and nil, as of December 31, 2018 and 2019, respectively.
For the years ended December 31, 2017, 2018 and 2019, interest income related to debt securities was RMB12,483,
RMB115,737 and RMB500,298 (US$71,863), respectively.
As of December 31, 2018 and 2019, the cost of marketable equity securities was nil and RMB23,398 (US$3,361),
respectively; and the unrealized loss included in the carrying amount was nil and RMB11,473 (US$1,648),
respectively. For the years ended December 31, 2017, 2018 and 2019, the realized loss from the marketable equity
securities was nil, nil and RMB5,435 (US$781), respectively.
F-25
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
5. Prepayments and Other Current Assets
The components of prepayments and other current assets are as follows:
Prepayments
Interest receivables
VAT recoverable
Rental and other deposits
Loan to a third party
Staff advances
Payments made on behalf of merchants
Provision for payments made on behalf of merchants
Others
The prepayments primarily consist of advertising fees paid in advance.
6. Property, Equipment and Software, Net
At cost:
Computer, office equipment and purchased software
Leasehold improvement
Less: accumulated depreciation
2018
RMB
667,113
101,062
63,005
64,902
35,000
7,868
11,105
(3,249)
7,183
953,989
As of December 31,
2019
RMB
645,169
146,294
102,426
12,060
—
4,020
27,360
(15,032)
27,980
950,277
2019
US$
92,673
21,014
14,713
1,732
—
577
3,930
(2,159)
4,019
136,499
2018
RMB
As of December 31,
2019
RMB
2019
US$
27,148
10,654
37,802
(8,727)
29,075
49,129
18,826
67,955
(26,682)
41,273
7,057
2,704
9,761
(3,833)
5,928
For the years ended December 31, 2017, 2018 and 2019, the Group recorded depreciation expenses of RMB2,265,
RMB5,934 and RMB18,098 (US$2,600), respectively, and were included in the following captions:
Costs of revenues
Sales and marketing expenses
General and administrative expenses
Research and development expenses
For the years ended December 31,
2017
RMB
553
546
181
985
2,265
2018
RMB
1,291
805
1,074
2,764
5,934
2019
RMB
3,603
2,415
1,901
10,179
18,098
2019
US$
518
347
273
1,462
2,600
F-26
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
7. Intangible Asset
Intangible asset consisted of the following:
Balance as of January 1, 2018
Addition
Amortization
Foreign currency translation difference
Balance as of December 31, 2018
Amortization
Foreign currency translation difference
Balance as of December 31, 2019
Total
RMB
—
2,852,370
(491,069)
218,037
2,579,338
(619,733)
34,687
1,994,292
In February 2018, the Company entered into a strategic cooperation framework agreement (the “Agreement”) with an
affiliate of Tencent Group. The Company and Tencent Group agreed to cooperate in a number of areas primarily for
Tencent Group to provide the Company Weixin access point and other services and to pursue additional opportunities
for future potential cooperation. The Agreement is valid for five years, from March 1, 2018 to February 28, 2023. The
Company recognized the Agreement as an intangible asset at the fair value of consideration paid in the form of
convertible preferred shares of RMB2,852 million. The Group recognizes the related amortization expense in costs of
revenues, over the period of five years using the straight-line method. Amortization expense for intangible asset were
RMB491,069 and RMB619,733 (US$89,019) for the years ended December 31, 2018 and 2019, respectively. No
impairment charge was recognized on the intangible asset for the years ended December 31, 2018 and 2019.
The estimated annual amortization expense for each of the remaining fiscal years is as follows:
2020
2021
2022
2023
Amortization
RMB
629,233
627,514
627,514
110,031
US$
90,384
90,137
90,137
15,805
F-27
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
8. Leases
The Group has operating leases mainly for offices in China. For the year ended December 31, 2019, operating lease
costs and short-term lease costs were RMB94,929 and RMB34,255, respectively. There were no leasing costs other
than the operating lease costs and short-term lease costs for the year ended December 31, 2019.
A maturity analysis of the Company's operating lease liabilities and reconciliation of the undiscounted cash flows to
the operating lease liabilities recognized on the condensed consolidated balance sheet was as below:
2020
2021
2022
2023
2024 and after
Total undiscounted cash flows
Less: imputed interest
Present value of lease liabilities
Rental
RMB
US$
142,058
150,231
128,731
94,598
97,558
613,176
(68,849)
544,327
20,405
21,579
18,491
13,588
14,013
88,076
(9,888)
78,188
As of December 31, 2019, the Company had no operating leases that had not yet commenced. The weighted average
remaining lease terms of the right-of-use assets was 4.37 years.
A weighted average incremental borrowing rate of 5.36% was adopted on the commencement date in determining the
present value of lease payments.
Other supplemental information related to leases is summarized below:
For the years ended December 31,
2019
RMB
2019
US$
Operating cash flows for operating leases
ROU assets obtained in exchange for new operating lease liabilities
76,130
402,646
10,935
57,836
9. Other Non-current Assets
Equity method investments are included in other non-current assets on the Company's consolidated balance sheets.
Equity method investments consist of the Company's investments as a limited partner in certain limited partnership
funds, including funds set up by the Company's related parties, to make strategic investments. As of December 31,
2018, The Company made advances in total of RMB182,667 to set up the funds. As of December 31, 2019, the
carrying amount for the investments was RMB433,649 (US$62,290). No equity method investments were considered,
individually or in aggregate, material as of December 31, 2019. During the year ended December 31, 2019, the Group
shared the profits or losses of the equity investees and recognized RMB28,676 (US$4,119) in share of results of equity
investees in the consolidated statements of comprehensive loss. There was no impairment on these investments during
the year ended December 31, 2019.
F-28
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
10. Accrued Expenses and Other Liabilities
The components of accrued expenses and other liabilities are as follows:
Payroll payable
Accrued expenses
VAT and other tax payable
Others
2018
RMB
389,615
1,371,483
436,495
28,074
2,225,667
As of December 31,
2019
RMB
1,061,228
2,727,273
1,045,796
42,765
4,877,062
2019
US$
152,436
391,748
150,219
6,144
700,547
Accrued expenses primarily consisted of accrued advertising and marketing expenses.
11. Short-term Borrowings
As of December 31, 2019, the Group obtained short-term borrowings from banks of RMB897,022 in aggregate
collateralized by bank wealth management products of RMB923,800, which were classified as short-term investments
as provided by one of the Group's wholly-owned subsidiaries. The annual interest rates of these borrowings are
approximately 2.70% to 3.00%. For the year ended December 31,2019,the Group recognized interest expense of
RMB1,726 (US$248) in the consolidated statements of comprehensive loss.
12. Convertible Bonds
On September 27, 2019, the Company issued US$1,000,000 principal amount 0.00% convertible senior notes
including US$125,000 sold upon the exercise of the over-allotment option (the "Notes"). The Notes will mature on
October 1, 2024 unless redeemed, repurchased or converted prior to such date.
Holders may convert their Notes at their option prior to the close of business on the business day immediately
preceding April 1, 2024 only under the following circumstances: (1) during any calendar quarter commencing after the
calendar quarter ending on December 31, 2019 (and only during such calendar quarter), if the last reported sale price
of American Depositary Shares (''ADSs''), each representing four Class A ordinary shares of the Company, par value
US$0.000005 per share, for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive
trading days ending on, and including, the last trading day of the immediately preceding calendar quarter is greater
than or equal to 130% of the conversion price on each applicable trading day; (2) during the five business day period
after any ten consecutive trading day period in which the trading price per US$1,000 principal amount of the Notes for
each trading day of the measurement period was less than 98% of the product of the last reported sale price of the
ADSs and the conversion rate on each such trading day; (3) if the Company calls the Notes for a tax redemption; (4) if
the Company calls the Notes for redemption at its option or (5) upon the occurrence of specified corporate events. On
or after April 1, 2024 until the close of business on the second scheduled trading day immediately preceding the
maturity date, holders may convert their Notes at any time. Upon conversion, the Company will pay or deliver, as the
case may be, cash, ADSs, or a combination of cash and ADSs, at its election.
F-29
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
12. Convertible Bonds (Continued)
The initial conversion rate of the Notes is 23.4680 of the Company's ADS per US$1,000 principal amount of the Notes
(which is equivalent to an initial conversion price of approximately US$42.61 per ADS). The conversion rate will be
subject to adjustment in some events. In addition, following certain corporate events that occur prior to the maturity
date, if a make-whole fundamental change occurs prior to the maturity date of the Notes, or under certain
circumstances upon a tax redemption or the Company's optional redemption, the Company will, in certain
circumstances, increase the conversion rate for a holder who elects to convert its Notes in connection with such
corporate event, such make-whole fundamental change or such notice of tax redemption or notice of optional
redemption, as the case may be. Upon conversion, the Company will pay or deliver, as the case may be, cash, ADSs
(plus cash in lieu of a fractional ADS) or a combination of cash and ADSs, at its election. If the Company satisfies its
conversion obligation solely in cash or through payment and delivery, as the case may be, of a combination of cash and
ADSs, the amount of cash and ADSs, if any, due upon conversion will be based on a daily conversion value calculated
on a proportionate basis for each trading day in a 40 trading day observation period.
The Company may not redeem the Notes prior to October 1, 2022 unless certain tax-related events occur. On or after
October 1, 2022, the Company may redeem for cash all or part of the Notes, at its option, if the last reported sale price
of the Company's American Depositary Shares (the "ADSs") has been at least 130% of the conversion price then in
effect on (i) each of at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period
ending on, and including, the trading day immediately prior to the date the Company provides notice of redemption;
and (ii) the trading day immediately preceding the date the Company sends such notice. Holders of the Notes may
require the Company to repurchase all or part of their Notes in cash on October 1, 2022 or in the event of certain
fundamental changes. No sinking fund is provided for the Notes.
As the conversion option may be settled in cash, ADSs, or a combination of cash and ADSs at the Company’s option,
the Company separated the Notes into liability and equity components in accordance with ASC 470-20, Debt with
Conversion and Other Options. The carrying amount of the liability component was calculated by measuring the fair
value of a similar liability that does not have an associated conversion feature. The carrying amount of the equity
component representing the conversion option was determined by deducting the fair value of the liability component
from the initial proceeds and recorded as additional paid-in capital. The resulting discount , together with the allocated
issuance costs as mentioned below, are accreted at an effective interest rate of 11.15% over the period from the
issuance date to October 1, 2022, the earliest put date of the Notes. The Group made estimates and judgments in
determining the effective interest rate of the liability component of the Notes with assistance from an independent
valuation firm.
The gross proceeds from the issuance of the Notes were US$1,000,000. Debt issuance costs including underwriting
commissions and offering expenses were approximately US$15,680, which were allocated to the liability and equity
components proportionately.
As of December 31, 2019, the principal amount of the liability component was US$1,000,000, unamortized debt
discount was US$253,651, and net carrying amount of the liability component was RMB5,206,682. The carrying
amount of the equity component was US$258,429. For the year ended December 31, 2019, the amount of interest cost
recognized relating to the amortization of the discount on the liability component was RMB144,132 (US$20,703). The
liability component will be accreted up to the principal amount over a remaining period of 2.75 years.
F-30
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
13. Convertible Preferred Shares
The following table summarizes the issuances of convertible preferred shares (collectively, “Convertible Preferred
Shares”):
Name
Series A1 Convertible Preferred Shares
Series A2 Convertible Preferred Shares
Series B1 Convertible Preferred Shares
Series B2 Convertible Preferred Shares
Series B3 Convertible Preferred Shares
Series B4 Convertible Preferred Shares
Series C1 Convertible Preferred Shares
Series C2 Convertible Preferred Shares
Series C3 Convertible Preferred Shares
Series D Convertible Preferred Shares
Issuance Date
$
June 2015
June 2015
$
November 2015 $
$
January 2016
$
March 2016
$
June 2016
$
February 2017
$
February 2017
$
June 2017
$
March 2018**
Original Issuance
Price per
Share*
Number of
Shares*
0.0093
71,849,380
0.0336 238,419,800
0.1576 211,588,720
0.1576
27,781,280
0.1576 145,978,540
0.1710 292,414,780
0.3545
56,430,180
0.3985 238,260,780
0.4139 241,604,260
551,174,340
2.4832
* In connection with the issuance of Series D convertible preferred shares, the Company effected a change of authorized
share capital (Note15), the Company’s then issued and outstanding Convertible Preferred Shares were split on a 1-to-
20 basis. The number of shares and per-share price in the consolidated financial statements were recasted on a
retroactive basis to reflect the effect of these changes.
** Series D Convertible Preferred Shares were issued and converted in 2018. Therefore, the balance was nil as of
December 31, 2018.
The significant terms of the Convertible Preferred Shares are summarized as follows:
Conversion
Convertible Preferred Shares can be converted into Class A ordinary shares at the option of the holder at any time by
dividing the applicable original purchase price by the applicable conversion price which is initially equal to the
original purchase price and as such, the initial conversion ratio for each Convertible Preferred Share into each
Ordinary Share shall be one-for-one.
Convertible Preferred Shares shall automatically be converted into Class A ordinary shares at the then-effective
conversion rate applicable to the relevant series of Convertible Preferred Shares upon the closing of an underwritten
public offering of the Ordinary Shares of the Company in the United States.
The conversion price is subject to additional adjustments if the Company makes certain dilutive issuances of shares.
F-31
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
13. Convertible Preferred Shares (Continued)
Dividends
The holders of outstanding shares of the Company shall be entitled to receive dividends, out of any assets legally
available therefor, payable in US$ and annually when, as and if declared by the Board. Such distributions shall not be
cumulative. Holders of the Convertible Preferred Shares shall also be entitled to receive any non-cash dividends
declared by the Board on an as-converted basis. The dividends or distributions shall be distributed among all holders
of Ordinary Shares and Convertible Preferred Shares in proportion to the number of Ordinary Shares that would be
held by each such holder if all Convertible Preferred Shares had been converted to Ordinary Shares as of the record
date fixed for determining those entitled to receive such distribution.
Liquidation preference
In the event of any liquidation, dissolution or winding up of the Company, either voluntary or involuntary, distributions
to the shareholders of the Group shall be made as stated below:
For the holders of teach series of Convertible Preferred Shares, (i) 100% of its issue price, plus (ii) an amount accruing
there on at a compound annual rate of 8% of the 100% issue price beginning on its closing date, plus (iii) all declared
but unpaid dividends thereon (Collectively, the ‘‘Preference Amount’’).
If the Company has insufficient assets to permit payment of the Series D Preferred Share Preference Amount in full to
all holders of the then issued and outstanding Series D Preferred Shares, then the assets of the Company shall be
distributed ratably to the holders of the then issued and outstanding Series D Preferred Shares in proportion to the full
Series D Preferred Share Preference Amount that each such holder of the then issued and outstanding Series D
Preferred Shares would otherwise be entitled to receive hereunder.
After the full Series D Preferred Share Preference Amount has been paid, any remaining funds or assets of the
Company legally available for distribution to shareholders shall then be distributed to holders of Series C-3 Preferred
Shares and Series C-2 Preferred Shares according to the sum of the Series C-3 Preferred Share Preference Amount and
Series C-2 Preferred Share Preference Amount. If the Company has insufficient assets to permit payment of the
Series C3 Preference Amount and the Series C2 Preference Amount in full to all holders of the then issued and
outstanding holders of Series C3 Convertible Preferred Shares and Series C2 Convertible Preferred Shares, then the
assets of the Company shall be distributed ratably to the holders of the then issued and outstanding Series C3
Convertible Preferred Shares and Series C2 in proportion to the full Series C3 Preference Amount and Series C2
Preference Amount that each such holder of the then issued and outstanding Series C3 Convertible Preferred Shares
and Series C2 Convertible Preferred Shares would otherwise be entitled to receive hereunder.
After the full Series C3 Preference Amount and the full Series C2 Preference Amount has been paid, any remaining
funds or assets of the Company legally available for distribution to shareholders shall then be distributed to holders of
Series C1 Convertible Preferred Shares and Series B Convertible Preferred Shares (including Series B1 to
B4 Convertible Preferred Shares) according to the sum of the Series C1 Preference Amount and Series B Preference
Amount. If the Company has insufficient assets to permit payment of the Series C1 Preference Amount and Series B
Preference Amount in full to all holders of the then issued and outstanding holders of Series C1 Convertible Preferred
Shares and Series B Convertible Preferred Shares, then the assets of the Company shall be distributed ratably to the
holders of the then issued and outstanding Series C1 Convertible Preferred Shares and Series B Convertible Preferred
Shares in proportion to the full Series C1 Convertible Preferred Share Preference Amount and Series B Convertible
Preferred Share Preference Amount that each such holder of the then issued and outstanding Series C1 Convertible
Preferred Shares and Series B Convertible Preferred Shares would otherwise be entitled to receive hereunder.
F-32
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
13. Convertible Preferred Shares (Continued)
Liquidation preference(Continue)
After the full Series C1 Preference Amount and the full Series B Preference Amount has been paid, any remaining
funds or assets of the Company legally available for distribution to shareholders shall then be distributed to holders of
Series A Convertible Preferred Shares (including Series A-1 and A2 Convertible Preferred Shares) according to the
Series A Preference Amount. If the Company has insufficient assets to permit payment of the Series A Preference
Amount in full to all holders of the then issued and outstanding holders of Series A Convertible Preferred Shares, then
the assets of the Company shall be distributed ratably to the holders of the then issued and outstanding Series A
Convertible Preferred Shares in proportion to the full Series A Preference Amount that each such holder of the then
issued and outstanding Series A Convertible Preferred Shares would otherwise be entitled to receive hereunder.
After the full Preference Amount on all outstanding Convertible Preferred Shares have been paid, any remaining funds
or assets of the Company legally available for distribution to shareholders shall be distributed on a pro rata, pari passu
basis among the holders of the Convertible Preferred Shares (calculated on an as-converted and fully-diluted basis),
together with the holders of the Ordinary Shares.
Deemed liquidation
Any sale of shares, merger, consolidation or other similar transaction involving the Company in which its shareholders
do not retain a majority of the voting power in the surviving or resulting entity, or a sale of all or substantially all the
Company’s assets (the ‘‘Liquidation Event’’, for avoidance of doubt, each transaction under the acquisitions also
referred herein as a Liquidation Event), shall be deemed a liquidation, dissolution or winding up of the Company, such
that the liquidation preference shall apply as if all consideration received by the Company and its shareholders in
connection with such event were being distributed in a liquidation of the Company (‘‘Deemed Liquidation’’).
The Convertible Preferred Shares are not redeemable except in the event of Deemed Liquidation, which permits the
holders to receive the Preference Amount as defined above.
Voting
Each Convertible Preferred Share shall carry a number of votes equal to the number of Class A ordinary shares then
issuable upon its conversion into Class A ordinary shares at the record date for determination of the shareholders
entitled to vote on such matters, or, if no such record date is established, at the date such vote is taken or any written
consent of shareholders is solicited.
Accounting for Convertible Preferred Shares
In February 2016, all shareholders of the Company approved the declaration and payment of a special cash dividend in
the amount of RMB18,326 to a shareholder of the Series B2 Convertible Preferred Shares. The dividend was recorded
in accumulated deficits.
In connection with the issuances of Series B1 Convertible Preferred Shares and Series B4 Convertible Preferred
Shares, liquidation preferences of certain Convertible Preferred Shares were modified and deemed distribution of
RMB12,104, nil and nil were recognized for the years ended December 31, 2016, 2017 and 2018, respectively.
F-33
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
13. Convertible Preferred Shares (Continued)
Accounting for Convertible Preferred Shares (Continued)
Concurrently with the issuance of Series C1 Convertible Preferred Shares in February 2017, the Company repurchased
from a company controlled by the Founder and cancelled 56,430,180 of Class B ordinary shares for cash consideration
of RMB137,580. The difference between the then fair value of the Class B ordinary shares of RMB32,677 and par
value was recorded in accumulated deficits. The excess of consideration over the then fair value of the Ordinary
Shares of RMB103,125 was accounted for as compensation expense within general and administrative expenses
(Note 17). The excess of the issuance price paid by the investor over the then fair value of the Series C1 Convertible
Preferred Shares of RMB26,413 was accounted for as a contribution from shareholder.
In March 2018, the Company issued 551,174,340 Series D convertible preferred shares to existing shareholders and
their affiliates including Tencent Group for a cash consideration of US$918,670 and an intangible asset at fair value
(Note 7).
In connection with the issuances of Series D convertible preferred shares, the liquidation preferences of Convertible
Preferred Shares were amended. The amendment to the liquidation preference of the Convertible Preferred Shares was
accounted for as modification as the fair value of Convertible Preferred Share immediately after the amendment was
not significantly different from its fair value immediately before the amendment. The Company accounted for the
modification that resulted in an increase to the fair value of the modified Convertible Preferred Shares of RMB80,496
(US$11,708) as deemed dividends during the year ended December 31, 2018.
The Series A convertible preferred shares, the Series B convertible preferred shares, the Series C convertible preferred
shares and the Series D convertible preferred shares (collectively the “Convertible Preferred Shares”) were classified
as mezzanine equity as they were contingently redeemable upon the occurrence of a Deemed Liquidation event. The
initial carrying amounts of the Convertible Preferred Shares were the fair value at the time of closing, less issuance
costs. The Company did not accrete the Convertible Preferred Shares to liquidation value as a Deemed Liquidation
event was not considered probable as of the end of each period presented. The Company determined conversion
options embedded in the Convertible Preferred Shares did not require bifurcation because the underlying Class A
ordinary shares were not publicly traded nor readily convertible into cash. There were no other embedded derivatives
that required bifurcation. The Company also determined that there were no beneficial conversion features to be
recorded.
Upon completion of the IPO in July 2018, all of the convertible preferred shares were converted to 1,971,811,320
Class A ordinary shares and 103,690,740 Class B ordinary shares.
14. Fair Value Measurement
In accordance with ASC 820, the Company measures the marketable equity securities with readily determinable fair
value and certain wealth management products classified as trading securities on a recurring basis. The fair value of
the marketable equity securities is measured using quoted market price and the fair value of certain wealth
management products classified as trading securities is determined based on quoted prices of similar assets.
F-34
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
14. Fair Value Measurement (Continued)
The following tables set forth the financial instruments measured at fair value on a recurring basis by level within the
fair value hierarchy:
Quoted Price in
Active Market
for Identical
Assets (Level 1)
RMB
Fair Value Measurements
Significant
Other
Observable
Inputs (Level 2)
RMB
Unobservable
Inputs
(Level 3)
RMB
Recurring
As of December 31, 2019:
Short-term investments:
Debt securities:
Trading
Equity securities:
Marketable
—
795,849
11,925
11,925
—
795,849
—
—
—
As of December 31, 2018 and 2019, the Group did not have any assets or liabilities that were measured at fair value on
a non-recurring basis and no impairment charge was recorded.
The followings are financial instruments not measured at fair value in the consolidated balance sheets, but for which
the fair value is estimated for disclosure purposes. The fair values of held-to-maturity debt investments are estimated
using prevailing interest rates. The fair values of the convertible bonds are based on broker quotes.
As of December 31, 2018:
Short term investments:
Debt securities:
Held-to-maturity
As of December 31, 2019:
Short-term investments:
Debt securities:
Held-to-maturity
Convertible bonds
15. Ordinary Shares
Quoted Price in
Active Market
for Identical
Assets (Level 1)
RMB
Fair Value Measurements
Significant
Other
Observable
Inputs (Level 2)
RMB
Unobservable
Inputs
(Level 3)
RMB
—
7,630,689
—
—
34,481,053
8,037,280
—
—
—
Holders of Class A ordinary shares and Class B ordinary shares are entitled to the same rights except for voting rights.
In respect of matters requiring a shareholder’s vote, each Class A ordinary share is entitled to one vote and each
Class B ordinary share is entitled to ten votes.
In connection with the issuance of Series D convertible preferred shares, the Company effected a change of authorized
share capital by repurchasing all of the then issued and outstanding ordinary shares at par value and reissued
42,486,360 Class A ordinary shares and 1,716,283,460 Class B ordinary shares to its existing holders of ordinary
shares. The number of shares and per-share price in the consolidated financial statements were recasted on a
retroactive basis to reflect the effect of these changes.
F-35
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
15. Ordinary Shares (Continued)
In the third quarter of 2018, the Company completed its Initial Public Offering (“IPO”) on the National Association of
Securities Deal Automated Quotations under the symbol of “PDD” of 91,735,827 ADSs (including 6,135,827 ADSs
sold upon the exercise of the underwriters’ over-allotment option), representing 366,943,308 Class A ordinary shares
for a total proceeds net of issuance costs of US$1,690,696.
Upon completion of the IPO, all convertible preferred shares were converted into ordinary shares.
In February 2019, the Company completed a follow-on public offering and issued 48,435,000 ADSs, representing
193,740,000 Class A ordinary shares for total proceeds net of issuance costs of US$1,181,209.
16. Revenues
Online marketplace services
Online marketing services
Transaction services
Merchandise sales
Contract balances
For the years ended December 31,
2017
RMB
2018
RMB
2019
RMB
2019
US$
1,209,275
531,416
3,385
1,744,076
11,515,575 26,813,641 3,851,539
478,072
1,604,415
—
—
13,119,990 30,141,886 4,329,611
3,328,245
—
The Group’s contract liabilities comprised of customer advances, deferred revenues and portions of payable to
merchants:
Customer advances and deferred revenues
Payable to merchants
December 31, 2018
RMB
As of
December 31, 2019
RMB
December 31, 2019
US$
191,482
72,939
605,970
116,557
87,042
16,742
Customer advances and deferred revenues and payable to merchants relate to considerations received in advance for
online marketing services and transaction services, for which control of the services occur at a later point in time. The
increase in the balance of contract liabilities was in line with the growth in online marketing services revenues and
higher value of orders placed by consumers for which the related transaction services have not been completed. During
the year ended December 31, 2019, revenues of RMB219,017 were recognized from the carrying value of contract
liabilities as of December 31, 2018. During the year ended December 31, 2018, revenues of RMB83,639 were
recognized from the carrying value of contract liabilities as of December 31, 2017.
17. Share-Based Compensation
In order to provide additional incentives to employees and to promote the success of the Group’s business, the Group
adopted a share incentive plan in 2015 (the ''2015 Plan''). The 2015 Plan allows the Group to grant options to
employees, directors, or consultants. Under the 2015 Plan, the maximum aggregate number of shares that may be
issued shall not exceed 581,972,860. The terms of the options shall not exceed ten years from the date of grant.
F-36
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
17. Share-Based Compensation (Continued)
In July 2018, the Group adopted the 2018 Share Incentive Plan (the “2018 Plan”). The 2018 Plan allows the Group to
grant options and restricted share units (“RSUs”) to employees, directors or consultants. Under the 2018 Plan, the
maximum aggregate number of shares that may be issued pursuant to all awards is initially 363,130,400, plus an
annual increase on the first day of each fiscal year of the company during the term of the 2018 Plan commencing with
the fiscal year beginning January 1, 2019, by an amount equal to the lessor of (i) 1.0% of the total number of shares
issued and outstanding on the last day of the immediately preceding fiscal year, and (ii) such number of shares as may
be determined by our board of directors.
For the share options granted under the 2015 Plan and the 2018 Plan, in addition to the explicit service periods of four
years, with 25% of the options vesting annually, Class A ordinary shares acquired from the exercise of vested options
cannot be sold or transferred by the employees without the prior written consents of the Company within the first three
years of vested (''Restricted Shares''). In the event that employment relationship is terminated with the Company,
voluntarily or involuntarily, within the three-year lock-up periods, the Company may, at its sole discretion, repurchase
the Restricted Shares at the employee’s exercise price. The Group determined the substance of the lock up periods to
be additional implicit service periods of three years, thereby extending the vesting terms of the options to be seven
years in total.
The RSUs granted under the 2018 Plan vest over a period of four years with 25% vesting on each anniversary from the
date of grant, or with 50% of the RSUs vesting on the second anniversary and 25% on each of the third and fourth
anniversary from the date of grant.
(a) Share options:
The following table summarize the Group’s option activities under the 2015 Plan and the 2018 Plan:
Outstanding as of January 1,2017
Granted
Forfeited
Outstanding as of December 31, 2017
Granted
Forfeited
Outstanding as of December 31, 2018
Granted
Forfeited
Outstanding as of December 31, 2019
Vested and expected to vest as of December 31,
Number of
share options
203,733,060
78,560,000
(9,850,200)
272,442,860
359,390,000
(2,240,000)
629,592,860
76,665,380
(7,937,140)
698,321,100
Weighted
average
exercise
price
US$
0.0065
0.0065
0.0065
0.0065
0.0065
0.0065
0.0065
0.0065
0.0065
0.0065
Aggregate
intrinsic
value
US$
10,390
Weighted
average
grant
date fair
value
US$
0.0301
0.1736
0.0544
0.0706
3.6289
2.5006
2.0931 3,527,924
7.7632
5.7059
2.6745 6,598,087
144,258
2019
Exercisable as of December 31,2019
698,321,100
298,464,265
0.0065
0.0065
2.6745 6,598,087
1.1083 2,820,040
Weighted
average
remaining
contractual
term
Years
9.25
8.57
8.64
7.83
7.83
7.01
The aggregate intrinsic value is calculated as the difference between the exercise price of the awards and the fair value
of the underlying Ordinary Shares at each reporting date, for those awards that had exercise price below the estimated
fair value of the relevant Ordinary Shares.
F-37
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
17. Share-Based Compensation (Continued)
(a) Share options: (continued)
The total fair value of vested options was RMB13,525, RMB45,979 and RMB2,243,028 (US$322,191) for the years
ended December 31, 2017, 2018 and 2019, respectively. As of December 31, 2019, total unrecognized share-based
compensation expense relating to unvested awards was RMB9,994,423 (US$1,435,609) which is expected to be
recognized over a weighted-average period of 4.83 years.
The Group calculated the estimated fair value of the options on the respective grant dates using the binomial-lattice
option valuation model with the following assumptions for each applicable period which took into account variables
such as volatility, dividend yield, and risk-free interest rates:
Risk-free interest rates
Expected volatility
Expected dividend yield
Exercise multiple
Post-vesting forfeit rate
Fair value of underlying Ordinary Shares
Fair value of share option
(b) RSUs:
2017
For the years ended December 31,
2018
2019
2.26%-2.57%
48.08%-49.35%
0%
2.80
0%
$0.0858-$0.5359
$0.0808-$0.5302
2.97%-3.13%
46.23%-48.63%
0%
2.80
0%
$1.5146-$5.7400
$1.5091-$5.7335
1.50%-2.90%
43.52%-57.59%
0%
2.80
0%
$4.8550-$8.9875
$4.8485-$8.9810
The following table summarize the Group’s RSU activities under the 2018 Plan:
Outstanding as of January 1, 2018
Granted
Outstanding as of December 31, 2018
Granted
Vested
Forfeited
Outstanding as of December 31, 2019
Number
of RSUs
—
8,295,240
8,295,240
36,409,188
(567,636)
(2,761,724)
41,375,068
Weighted
average
grant date
fair value
US$
—
6.2519
6.2519
6.7698
6.9225
6.4514
6.6855
The total fair value of the RSUs vested during the years ended December 31, 2018 and 2019 was nil and RMB27,073
(US$3,889) respectively. The weighted average grant date fair value of RSUs granted during the year ended
December 31,2018 and 2019 was US$6.2519 and US$6.6855 respectively.
As of December 31, 2019, RMB1,451,466 (US$208,490) of unrecognized share-based compensation expenses related
to RSUs is expected to be recognized over a weighted average vesting period of 3.35 years using the accelerated
method. Total unrecognized share-based compensation expenses may be adjusted for future changes when actual
forfeitures incurred.
F-38
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
17. Share-Based Compensation (Continued)
(c) Share-based compensation expense by function:
The Group recognized share-based compensation expenses for the years ended December 31, 2017, 2018 and 2019
as follows:
Costs of revenues
Sales and marketing expenses
General and administrative expenses i) / ii)
Research and development
For the years ended
December 31,
2017
RMB
796
1,675
108,141
5,893
116,505
2018
RMB
3,488
405,805
6,296,186
136,094
6,841,573
2019
RMB
23,835
860,862
786,641
886,368
2,557,706
2019
US$
3,424
123,655
112,994
127,319
367,392
i) For the year ended December 31, 2017, the Company recorded RMB103,125, in share-based compensation expenses
in connection with the repurchase of Class B ordinary shares from the Founder. No such transaction took place during
the years ended December 31, 2018 and 2019.
ii) In April 2018, the Company issued 254,473,500 Class A ordinary shares to a company controlled by the Founder at
the par value of US$0.000005 per share pursuant to a shareholders’ resolution. The difference between the par value
and estimated fair value of ordinary shares on the grant date was recorded as a one-time share-based compensation
expense of RMB5,953,717 in general and administration expenses. No such transaction took place during the years
ended December 31, 2017 and 2019.
18. Income Taxes
Cayman Islands
Under the current laws of the Cayman Islands, the Company is not subject to tax on income or capital gain arising in
Cayman Islands. Additionally, upon payments of dividends by the Company to its shareholders, no Cayman Islands
withholding tax will be imposed.
Hong Kong
Walnut HK is incorporated in Hong Kong and is subject to Hong Kong profits tax at the rate of 16.5% on its activities
conducted in Hong Kong and it may be exempted from income tax on its foreign-derived income and there are no
withholding taxes in Hong Kong on remittance of dividends.
PRC
The Company’s subsidiaries and VIE in the PRC are subject to the statutory rate of 25%, in accordance with the
Enterprise Income Tax law (the ”EIT Law”), which was effective since January 1, 2008, except for certain entities
eligible for preferential tax rates.
Shanghai Xunmeng, a subsidiary of VIE, was recognized as a high and new technology enterprise (“HNTE”) in
November 2018 and was eligible for 15% preferential tax rate from 2018 to 2020.
F-39
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
18. Income Taxes (Continued)
PRC (Continued)
In April 2018, Xinzhijiang, a subsidiary located in Qianhai District, Shenzhen, Guangdong Province, was eligible for a
preferential tax rate of 15% and started to apply this rate from then on. The preferential tax rate is awarded to
companies that are located in Qianhai District which operate in certain encouraged industries, from 2014 to 2020.
Dividends, interests, rent or royalties payable by the Company’s PRC subsidiaries, to non-PRC resident enterprises,
and proceeds from any such non-resident enterprise investor’s disposition of assets (after deducting the net value of
such assets) shall be subject to 10% withholding tax, unless the respective non-PRC resident enterprise’s jurisdiction
of incorporation has a tax treaty or arrangements with China that provides for a reduced withholding tax rate or an
exemption from withholding tax.
The Group’s loss before income taxes consisted of:
Non-PRC
PRC
2017
RMB
(108,086)
(417,029)
(525,115)
For the years ended December 31,
2018
RMB
(7,083,904)
(3,133,221)
(10,217,125)
2019
RMB
(2,741,219)
(4,226,384)
(6,967,603)
2019
US$
(393,751)
(607,083)
(1,000,834)
The Group had no current or deferred income tax expenses or benefits for the years ended December 31, 2017, 2018
and 2019.
The reconciliations of the income tax expenses for the years ended December 31, 2017, 2018 and 2019 were
as follows:
Loss before income tax expense
PRC statutory tax rate
Income tax benefits at PRC statutory tax rate
International tax rate differential
Preferential tax rate
Non-deductible expenses
Non-taxable income
Loss not recognized
Deferred tax items tax rate differential
Additional deduction of research and development expenses
Change in valuation allowance
Income tax expenses
For the years ended December 31,
2017
RMB
(525,115)
2018
RMB
(10,217,125)
2019
RMB
(6,967,603)
2019
US$
(1,000,834)
25 %
25 %
25 %
25 %
(131,279)
27,074
—
6,890
(11,962)
22,747
—
—
86,530
—
(2,554,281)
1,779,100
197,828
36,726
(20,973)
—
(34,236)
(22,672)
618,508
—
(1,741,901)
735,028
358,796
(5,980)
(61,151)
—
(570,382)
(67,628)
1,353,218
—
(250,208)
105,580
51,538
(859)
(8,784)
—
(81,930)
(9,714)
194,377
—
F-40
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
18. Income Taxes (Continued)
PRC (Continued)
The significant components of the Group’s deferred tax assets were as follows:
Deferred tax assets
Tax losses carried forward
Carryforwards of non-deductible advertising expenses and donations
Others
Less: valuation allowance
Deferred tax assets, net
2018
RMB
As of December 31,
2019
RMB
2019
US$
343,809
424,883
13,276
(781,968)
—
1,840,246
251,829
43,111
(2,135,186)
—
264,335
36,173
6,193
(306,701)
—
The Group operates through several subsidiaries, the VIE and the subsidiaries of the VIE. Realization of the net
deferred tax assets is dependent on factors including future reversals of existing taxable temporary differences and
adequate future taxable income, exclusive of reversing deductible temporary differences and tax loss or credit carry
forwards. The Group evaluates the potential realization of deferred tax assets on an entity-by-entity basis. As of
December 31, 2018 and 2019, valuation allowances were provided against deferred tax assets in entities where it was
determined it was more likely than not that the benefits of the deferred tax assets will not be realized.
As of December 31,2018 and 2019, the Group had taxable losses of RMB1,551,301 and RMB8,174,339
(US$1,174,170) derived from entities in the PRC, which can be carried forward for five years to offset future taxable
profit , and the period was extended to ten years for entities qualified as HNTE in 2019 and thereafter. The PRC
taxable loss will expire from December 31, 2020 to 2029 if not utilized.
The Group plans to indefinitely reinvest the undistributed earnings of its subsidiaries, the VIE and the subsidiaries of
the VIE located in the PRC. As of December 31, 2018 and 2019, there were no undistributed earnings from these
entities and no withholding tax has been accrued.
As of December 31, 2018 and 2019, the Group did not have significant unrecognized tax benefit, all of which were
presented on a net basis against the deferred tax assets related to tax loss carry forwards on the consolidated balance
sheets. It is possible that the amount of unrecognized benefit will further change in the next 12 months; however, an
estimate of the range of the possible change cannot be made at this moment.
For the years ended December 31, 2017, 2018 and 2019, no interest expense was accrued in relation to the
unrecognized tax benefit. As of December 31, 2018 and 2019 there were no accumulated interest expenses recorded in
unrecognized tax benefit.
As of December 31, 2019, the tax years ended December 31, 2014 through period ended as of the reporting dates for
the WFOE, the VIE and the subsidiaries of the VIE remain open to examination by the PRC tax authorities.
F-41
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
19. Related Party Transactions
(a) Related parties
Names of related parties
Tencent and its affiliates (“Tencent Group”)
Toshare Group Holding Limited(1)
Suzhou Lebei Network Technology Co., Ltd(2)
Ningbo Hexin Equity Investment Partnership
Relationship with the Group
A shareholder of the Company
Company controlled by the Founder
Company controlled by one of the directors of the Company
Company controlled by one of the executive officers of the
Company
(1) Toshare Group Holding Limited was no longer a related party of the Company since September 2019.
(2) Suzhou Lebei Network Technology Co., Ltd was no longer a related party of the Company since June 2018.
(b) Other than disclosed elsewhere, the Group had the following significant related party transactions for the years
ended December 31, 2017, 2018 and 2019, respectively:
For the years ended December 31,
2017
RMB
2018
RMB
2019
RMB
2019
US$
Services received from:
Tencent Group
Suzhou Lebei Network Technology Co., Ltd
516,014
2,444
1,266,362
—
2,298,074
—
330,098
—
(c) The Group had the following significant related party balances as of December 31, 2018 and 2019:
Accounts due from related parties:
Current:
Tencent Group*
Ningbo Hexin Equity Investment Partnership **
Accounts due to related parties:
Current:
Toshare Group Holding Limited
Tencent Group
2018
RMB
As of December 31,
2019
RMB
2019
US$
1,018,963
—
1,905,793
459,632
273,750
66,022
19,966
458,147
—
1,502,892
—
215,877
* The balance represents receivables due from the online payment platform operated by Tencent Group.
** The balance represents a loan to Ningbo Hexin Equity Investment Partnership, an entity controlled by one of the
executive officers of the Company.
F-42
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
20. Loss Per Share
The following table sets forth the computation of basic and diluted net loss per share for the following periods:
Numerator:
Net loss
Deemed distribution to certain holders of convertible preferred shares
Contribution from certain holder of convertible preferred shares
Net loss attributable to ordinary shareholders
For the year ended December 31,
2017
RMB
2018
RMB
2019
RMB
2019
US$
(525,115)
—
26,413
(498,702)
(10,217,125)
(80,496)
—
(10,297,621)
(6,967,603)
—
—
(6,967,603)
(1,000,834)
—
—
(1,000,834)
Denominator (in thousands of shares):
Weighted-average number of ordinary shares outstanding – basic and diluted
1,764,799
2,968,320
4,627,278
4,627,278
Loss per share – basic and diluted
(0.28)
(3.47)
(1.51)
(0.22)
In 2019, the Company issued 600,000 ordinary shares to its share depositary bank without consideration received by
the Company for the issuance. 567,636 out of the total 600,000 ordinary shares were used to settle share-based
compensation. The remaining 32,364 ordinary shares are legally issued and outstanding but are treated as escrowed
shares for accounting purposes and therefore, have been excluded from the computation of loss per share.
21. Restricted Net Assets
The Company’s ability to pay dividends is primarily dependent on the Company receiving distributions of funds from
its subsidiaries, the VIE and subsidiaries of the VIE. Relevant PRC statutory laws and regulations permit payments of
dividends by the Company’s PRC subsidiaries, the VIE and subsidiaries of the VIE only out of their retained earnings,
if any, as determined in accordance with PRC accounting standards and regulations. The results of operations reflected
in the consolidated financial statements prepared in accordance with U.S. GAAP differ from those reflected in the
statutory financial statements of the Company’s subsidiaries, the VIE and subsidiaries of the VIE.
In accordance with the PRC Regulations on Enterprises with Foreign Investment and the articles of association of the
Company’s PRC subsidiaries, a foreign-invested enterprise established in the PRC is required to provide certain
statutory reserves, namely general reserve fund, the enterprise expansion fund and staff welfare and bonus fund which
are appropriated from net profit as reported in the enterprise’s PRC statutory accounts. A foreign-invested enterprise is
required to allocate at least 10% of its annual after-tax profit to the general reserve fund until such reserve has reached
50% of its respective registered capital based on the enterprise’s PRC statutory accounts. Appropriations to the
enterprise expansion fund and staff welfare and bonus fund are at the discretion of the board of directors for all
foreign-invested enterprises. The aforementioned reserves can only be used for specific purposes and are not
distributable as cash dividends. The WFOE was established as a foreign-invested enterprise and, therefore, is subject
to the above mandated restrictions on distributable profits. For the years ended December 31, 2017, 2018 and 2019,
WFOE did not have after-tax profit and therefore no statutory reserves have been allocated.
Foreign exchange and other regulations in the PRC may further restrict the Company’s VIE from transferring funds to
the Company in the form of dividends, loans and advances. Amounts restricted include paid-in capital and statutory
reserves of the Company’s PRC Subsidiaries and the equity of the VIE, as determined pursuant to PRC generally
accepted accounting principles. As of December 31, 2019, restricted net assets of the Company’s PRC subsidiaries, the
VIE and subsidiaries of the VIE were RMB8,344,790 (US$1,198,654).
F-43
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
22. Mainland China Employee Contribution Plan
As stipulated by the regulations of the PRC, full-time employees of the Group are entitled to various government
statutory employee benefit plans, including medical insurance, maternity insurance, workplace injury insurance,
unemployment insurance and pension benefits through a PRC government-mandated multi-employer defined
contribution plan. The Group is required to make contributions to the plan based on certain percentages of employees’
salaries. The total expenses the Group incurred for the plan were RMB30,795, RMB133,699 and RMB334,434
(US$48,038) for the years ended December 31, 2017, 2018 and 2019, respectively.
23. Commitments and Contingencies
(a) Operating lease commitments
The Company leases offices for operation under operating leases. Future minimum lease payments under non-
cancellable operating leases with initial terms in excess of one year included in is Note 8.
(b) Investment commitments
The Group's investment commitments primarily relate to capital contributions obligation under certain arrangement
which does not have contractual maturity date. The total investment commitments contracted but not yet reflected in
the financial statements amounted to USD16,000.
(c) Contingencies
In the ordinary course of business, the Group is from time to time involved in legal proceedings and litigations relating
to disputes relating to trademarks and other intellectual property, among others. In July 2018, a complaint was filed
against us in the U.S. federal court alleging contributory trademark infringement and unfair competition based on
certain allegedly counterfeit and unauthorized merchandise sold by merchants to U.S. consumers on the platform. In
August, 2019, the court dismissed all claims against the Group. Between August and December 2018, several putative
shareholder class action lawsuits were filed against the Group and certain of its officers and directors in the U.S.
District Court for the Southern District of New York (“SDNY”) and the Superior Court of the State of California. In
March 2020, the court granted the Group’s motion to dismiss the claims in the consolidated action in the SDNY. The
California action remains in its preliminary stages, for which, the Group cannot reliably estimate the likelihood of an
unfavorable outcome or any estimate of the amounts or range of any potential loss. As of December 31, 2019, the
Group did not consider an unfavorable outcome in any material respects in the outstanding legal proceedings and
litigations to be probable.
(d) Income Taxes
As disclosed in Note 18, the Group had unrecognized tax benefits. The final outcome of the tax uncertainty is
dependent upon various matters including tax examinations, interpretation of tax laws or expiration of statutes of
limitation. However, due to the uncertainties associated with the status of examinations, including the protocols of
finalizing audits by the relevant tax authorities, there is a high degree of uncertainty regarding the future cash outflows
associated with these tax uncertainties.
F-44
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
24. Subsequent Events
Beginning in January 2020, the emergence and wide spread of the novel Coronavirus ("COVID-19") has resulted in
quarantines, travel restrictions, and the temporary closure of stores and facilities in China and elsewhere.
Substantially all of the Group's revenues and workforce are concentrated in China. Consequently, the COVID-19
outbreak as a pandemic may adversely affect the Group’s business operations, financial condition and operating results
for 2020, including but not limited to negative impact to the Group's total revenues and downward adjustments or
impairment to the Group's non-current assets. Because of the significant uncertainties surrounding the COVID-19
outbreak, the extent of the business disruption and the related impact on the overall financial performance and outlook
in 2020 cannot be reasonably estimated at this time.
On March 31, 2020, the Company announced that certain long-term investors have agreed to purchase through a
private placement a total of US$1.1 billion of newly issued Class A ordinary shares of the company, representing
approximately 2.8% of the company's total outstanding shares. The transaction was closed in early April 2020.
In April 2020, the Group entered into a subscription agreement in relation to the subscription of US$200 million
convertible bonds issued by a third party listed on the Hong Kong Exchange. The convertible bonds bear interests at
the coupon rate of 5% per annum with the maturity date falling on the third anniversary of the issue date, which may
be extended to the fifth anniversary of the issue date at the election of the Group.
F-45
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
25. Condensed Financial Information of the Company
The following is the condensed financial information of the Company on a parent company only basis.
ASSETS
Current assets
Cash and cash equivalents
Short-term investments
Prepayments and other current assets
Total current assets
Non-current assets
Intangible asset
Investments in subsidiaries, the VIE and subsidiaries of the VIE
Total non-current assets
Total assets
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Accrued expenses and other liabilities
Total current liabilities
Convertible bonds
Other non-current liabilities
Total non-current liabilities
Total liabilities
Shareholders’ equity
Class A ordinary shares (US$0.000005 par value; 77,300,000,000 shares authorized, 2,381,240,988
issued and outstanding as of December 31, 2018;77,300,000,000 shares authorized, 2,575,580,988
issued and outstanding as of December 31, 2019)
Class B ordinary shares (US$0.000005 par value; 2,200,000,000 authorized, 2,074,447,700 issued and
outstanding as of December 31, 2018 and 2019)
Additional paid-in capital
Accumulated other comprehensive income
Accumulated deficits
Total shareholders' equity
Total liabilities and shareholders’ equity
F-46
2018
RMB
As of December 31,
2019
RMB
US$
5,541,746
6,260,689
18,789
11,821,224
2,579,338
4,440,777
7,020,115
18,841,339
661,714
6,157,221
17,906
6,836,841
1,994,292
21,053,370
23,047,662
29,884,503
18,745
18,745
—
—
—
18,745
23,566
23,566
5,206,682
7,389
5,214,071
5,237,637
95,049
884,429
2,572
982,050
286,462
3,024,127
3,310,589
4,292,639
3,385
3,385
747,893
1,061
748,954
752,339
78
84
12
64
29,114,527
1,035,783
(11,327,858)
18,822,594
18,841,339
64
41,493,949
1,448,230
(18,295,461)
24,646,866
29,884,503
9
5,960,233
208,025
(2,627,979)
3,540,300
4,292,639
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
25. Condensed Financial Information of the Company (Continued)
Costs of revenues
Costs of online marketplace services
Total costs of revenues
Sales and marketing expenses
General and administrative expenses
Total operating expenses
Operating loss
Interest income
Interest expense
Foreign exchange gain
Other loss
Share of losses from subsidiaries, the VIE and subsidiaries of the VIE
Loss before income tax
Income tax expenses
Net loss
Other comprehensive income, net of tax of nil
Foreign currency translation difference, net of tax of nil
Comprehensive loss
Net cash generated from operating activities
Cash flows from investing activities:
Proceeds from sales of short-term investments
Cash given to purchase of short-term investments
Cash given to subsidiaries, the VIE and subsidiaries of the VIE
Net cash used in investing activities
Cash flows from financing activities:
Proceeds from initial public offering
Costs incurred for the initial public offering costs
Proceeds from follow-on offering
Costs incurred for the issuance costs of follow-on offering
Proceeds from issuance of convertible bonds
Costs incurred for the issuance of convertible bonds
Proceeds from issuance of convertible preferred shares
Costs incurred for the issuance at convertible preferred shares
Repurchase of Class B Ordinary Shares
Net cash generated from financing activities
Exchange rate effect on cash, cash equivalents and restricted cash
Net increase/(decrease) in cash, cash equivalents and restricted cash
Cash, cash equivalents and restricted cash at beginning of year
Cash, cash equivalents and restricted cash at end of year
For the years ended December 31,
2019
2017
RMB
2018
RMB
RMB
US$
—
—
—
(165)
(165)
(165)
8,264
—
—
—
(533,214)
(525,115)
—
(525,115)
(491,069)
(491,069)
(4,106)
(4,101)
(8,207)
(499,276)
207,597
—
113
—
(9,925,559)
(10,217,125)
(619,733)
(619,733)
(47,746)
(3,245)
(50,991)
(670,724)
318,166
(144,132)
—
(31)
(6,470,882)
(6,967,603)
—
—
(10,217,125)
(6,967,603)
(89,019)
(89,019)
(6,858)
(466)
(7,324)
(96,343)
45,702
(20,703)
—
(4)
(929,484)
(1,000,832)
—
(1,000,832)
(47,681)
(572,796)
1,058,884
(9,158,241)
412,447
(6,555,156)
59,244
(941,588)
For the years ended December 31,
2019
2017
RMB
2,753
2018
RMB
110,724
RMB
259,409
US$
37,262
—
—
— (6,146,370)
(6,749,831)
(12,896,201)
(1,058,908)
(1,058,908)
6,049,590
(5,998,024)
(20,293,132)
(20,241,566)
868,969
(861,562)
(2,914,926)
(2,907,519)
— 11,879,944
(356,313)
—
—
—
—
—
—
—
—
—
5,824,568
1,446,906
(3,842)
(15,369)
(32,677)
—
17,344,357
1,398,860
319,221
(47,820)
4,878,101
294,885
368,760
663,645
5,541,746
663,645
—
—
8,194,597
(200,769)
7,073,101
(106,344)
—
—
—
14,960,585
141,540
(4,880,032)
5,541,746
661,714
—
—
1,177,080
(28,839)
1,015,987
(15,275)
—
—
—
2,148,953
20,331
(700,973)
796,022
95,049
F-47
Table of Contents
PINDUODUO INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Amounts in thousands of RMB and US$, except for number of shares and per share data)
25. Condensed Financial Information of the Company (Continued)
Basis of presentation
Condensed financial information is used for the presentation of the Company, or the parent company. The condensed
financial information of the parent company has been prepared using the same accounting policies as set out in the
Company’s consolidated financial statements except that the parent company used the equity method to account for
investment in its subsidiaries, the VIE and subsidiaries of the VIE.
The parent company records its investment in its subsidiaries, the VIE and its subsidiaries under the equity method of
accounting as prescribed in ASC 323, Investments-Equity Method and Joint Ventures. Such investments are presented
on the condensed balance sheets as ''Investments in subsidiaries, the VIE and a subsidiaries of the VIE'' or ''Loss in
excess of investments in subsidiaries, the VIE and subsidiaries of the VIE'' and their respective loss as ''Share of loss in
subsidiaries, the VIE and a subsidiaries of the VIE'' on the condensed statements of comprehensive loss. Equity
method accounting ceases when the carrying amount of the investment, including any additional financial support, in
subsidiaries, the VIE and subsidiaries of the VIE is reduced to zero unless the parent company has guaranteed
obligations of the subsidiaries, the VIE and subsidiaries of the VIE or is otherwise committed to provide further
financial support. If the subsidiaries, the VIE subsidiaries of the VIE subsequently reports net income, the parent
company shall resume applying the equity method only after its share of that net income equals the share of net loss
not recognized during the period the equity method was suspended.
The parent company’s condensed financial statements should be read in conjunction with the Company’s consolidated
financial statements.
F-48
Exhibit 2.5
PINDUODUO INC.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
INDENTURE
Dated as of September 27, 2019
0% Convertible Senior Notes due 2024
TABLE OF CONTENTS
Article 1
DEFINITIONS
Page
Section 1.01
Section 1.02
Definitions
References to Interest
Article 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF
NOTES
Designation and Amount
Form of Notes
Date and Denomination of Notes; No Regular Interest; Payments of Special
Interest and Defaulted Amounts
Execution, Authentication and Delivery of Notes
Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary
Mutilated, Destroyed, Lost or Stolen Notes
Temporary Notes
Cancellation of Notes Paid, Converted, Etc
CUSIP Numbers
Additional Notes; Repurchases
Appointment of Authenticating Agent
Section 2.01
Section 2.02
Section 2.03
Section 2.04
Section 2.05
Section 2.06
Section 2.07
Section 2.08
Section 2.09
Section 2.10
Section 2.11
Article 3
SATISFACTION AND DISCHARGE
Section 3.01
Satisfaction and Discharge
Article 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Section 4.02
Section 4.03
Section 4.04
Section 4.05
Section 4.06
Section 4.07
Section 4.08
Section 4.09
Section 4.10
Payment of Principal and Special Interest
Maintenance of Office or Agency
Appointments to Fill Vacancies in Trustee’s Office
Provisions as to Paying Agent
Existence
Rule 144A Information Requirement and Annual Reports
Additional Amounts
Stay, Extension and Usury Laws
Compliance Certificate; Statements as to Defaults
Further Instruments and Acts
I
1
15
15
15
16
18
19
26
27
27
28
28
28
29
29
29
30
30
31
31
33
36
36
36
Article 5
LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
Section 5.01
Section 5.02
Lists of Holders
Preservation and Disclosure of Lists
Article 6
DEFAULTS AND REMEDIES
Section 6.01
Section 6.02
Section 6.03
Section 6.04
Section 6.05
Section 6.06
Section 6.07
Section 6.08
Section 6.09
Section 6.10
Section 6.11
Section 7.01
Section 7.02
Section 7.03
Section 7.04
Section 7.05
Section 7.06
Section 7.07
Section 7.08
Section 7.09
Section 7.10
Section 7.11
Section 7.12
Events of Default
Acceleration; Rescission and Annulment
Special Interest
Payments of Notes on Default; Suit Therefor
Application of Monies Collected by Trustee
Proceedings by Holders
Proceedings by Trustee
Remedies Cumulative and Continuing
Direction of Proceedings and Waiver of Defaults by Majority of Holders
Notice of Defaults and Events of Default
Undertaking to Pay Costs
Article 7
CONCERNING THE TRUSTEE
Duties and Responsibilities of Trustee
Reliance on Documents, Opinions, Etc
No Responsibility for Recitals, Etc
Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note
Registrar May Own Notes
Monies and ADSs to Be Held in Trust
Compensation and Expenses of Trustee
Officer’s Certificate as Evidence
Eligibility of Trustee
Resignation or Removal of Trustee
Acceptance by Successor Trustee
Succession by Merger, Etc
Trustee’s Application for Instructions from the Company
Article 8
CONCERNING THE HOLDERS
Section 8.01
Section 8.02
Section 8.03
Section 8.04
Section 8.05
Action by Holders
Proof of Execution by Holders
Who Are Deemed Absolute Owners
Company-Owned Notes Disregarded
Revocation of Consents; Future Holders Bound
II
36
37
37
38
39
40
42
43
44
44
44
45
45
45
47
50
50
50
50
52
52
52
53
54
54
55
55
55
55
56
Article 9
HOLDERS’ MEETINGS
Section 9.01
Section 9.02
Section 9.03
Section 9.04
Section 9.05
Section 9.06
Section 9.07
Purpose of Meetings
Call of Meetings by Trustee
Call of Meetings by Company or Holders
Qualifications for Voting
Regulations
Voting
No Delay of Rights by Meeting
Article 10
SUPPLEMENTAL INDENTURES
Section 10.01
Section 10.02
Section 10.03
Section 10.04 Notation on Notes
Section 10.05
Supplemental Indentures Without Consent of Holders
Supplemental Indentures with Consent of Holders
Effect of Supplemental Indentures
Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
Article 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.01
Section 11.02
Section 11.03
Company May Consolidate, Etc. on Certain Terms
Successor Corporation to Be Substituted
Opinion of Counsel to Be Given to Trustee
Article 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 12.01
Indenture and Notes Solely Corporate Obligations
Article 13
INTENTIONALLY OMITTED
Article 14
CONVERSION OF NOTES
Section 14.01
Section 14.02
Section 14.03
Conversion Privilege
Conversion Procedure; Settlement Upon Conversion
Increased Conversion Rate Applicable to Certain Notes Surrendered in
Connection with Make- Whole Fundamental Changes
Section 14.04 Adjustment of Conversion Rate
Section 14.05 Adjustments of Prices
Section 14.06
Class A Ordinary Shares to Be Fully Paid
III
56
57
57
57
57
58
58
59
59
61
61
61
61
62
63
63
63
66
70
73
83
83
Section 14.07
Effect of Recapitalizations, Reclassifications and Changes of the Class A
Ordinary Shares
Certain Covenants
Responsibility of Trustee
Section 14.08
Section 14.09
Section 14.10 Notice to Holders Prior to Certain Actions. In case of any
Section 14.11
Section 14.12
Section 14.13
Section 14.14
Stockholder Rights Plans
Limit on Issuance of ADSs Upon Conversion
Termination of Depositary Receipt Program
Exchange In Lieu Of Conversion
Article 15
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 15.01
Section 15.02
Section 15.03 Withdrawal of Repurchase Notice or Fundamental Change Repurchase
Repurchase at Option of Holders(a)
Repurchase at Option of Holders Upon a Fundamental Change
Notice
Section 15.04 Deposit of Repurchase Price or Fundamental Change Repurchase Price
Covenant to Comply with Applicable Laws Upon Repurchase of Notes
Section 15.05
Article 16
OPTIONAL REDEMPTION
Section 16.01 Optional Redemption for Changes in the Tax Law of the Relevant Taxing
Section 16.02 Optional Redemption by the Company
Jurisdiction
Article 17
MISCELLANEOUS PROVISIONS
Provisions Binding on Company’s Successors
Section 17.01
Section 17.02 Official Acts by Successor Corporation
Section 17.03 Addresses for Notices, Etc
Section 17.04 Governing Law; Jurisdiction
Section 17.05
Section 17.06
Submission to Jurisdiction; Service of Process
Evidence of Compliance with Conditions Precedent; Certificates and
Opinions of Counsel to Trustee
Legal Holidays
Section 17.07
Section 17.08 No Security Interest Created
Section 17.09
Section 17.10
Section 17.11
Section 17.12
Section 17.13 Waiver of Jury Trial
Section 17.14
Benefits of Indenture
Table of Contents, Headings, Etc
Execution in Counterparts
Severability
Force Majeure
IV
84
85
86
87
87
88
88
88
89
91
94
94
95
96
98
100
100
100
101
101
102
102
102
103
103
103
103
103
103
Section 17.15
Section 17.16 USA PATRIOT Act
Calculations
Exhibit A
Form of Note
EXHIBIT
V
103
104
A-1
INDENTURE dated as of September 27, 2019 between PINDUODUO INC., a Cayman Islands exempted
company, as issuer (the “Company,” as more fully set forth in Section 1.01) and DEUTSCHE BANK TRUST
COMPANY AMERICAS, a New York banking corporation, as trustee (the “Trustee,” as more fully set forth in
Section 1.01).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its 0%
Convertible Senior Notes due 2024 (the “Notes”), initially in an aggregate principal amount not to exceed
US$1,000,000,000, and in order to provide the terms and conditions upon which the Notes are to be authenticated,
issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of
Notice of Conversion, the Form of Fundamental Change Repurchase Notice, the Form of Repurchase Notice and
the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter
provided; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee, as in this Indenture provided, the valid, binding and legal obligations
of the Company, and this Indenture a valid agreement according to its terms, have been done and performed, and
the execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated,
issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the
Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the
respective Holders from time to time of the Notes (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein,”
“hereof,” “hereunder,” and words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.
“Additional ADSs” shall have the meaning specified in Section 14.03(a).
“Additional Amounts” shall have the meaning specified in Section 4.07(a).
“ADS” means an American Depositary Share, issued pursuant to the Unrestricted Deposit Agreement or
Restricted Deposit Agreement, as applicable, representing four Class A Ordinary Shares of the Company as of the
date of this Indenture, and deposited with the ADS Custodian.
“ADS Custodian” means Deutsche Bank Trust Company Americas, with respect to the ADSs delivered
pursuant to the Unrestricted Deposit Agreement or the Restricted Deposit Agreement, as applicable, or any
successor entity thereto.
“ADS Depositary” means Deutsche Bank Trust Company Americas, as depositary for the ADSs, or any
successor entity thereto.
“ADS Price” shall have the meaning specified in Section 14.03(c).
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For the purposes of this definition,
“control,” when used with respect to any specified Person means the power to direct or cause the direction of the
management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the
foregoing. Notwithstanding anything to the contrary herein, the determination of whether one Person is an
“Affiliate” of another Person for purposes of this Indenture shall be made based on the facts at the time such
determination is made or required to be made, as the case may be, hereunder.
“Agent Parties” shall have the meaning specified in Section 7.02(l).
“Agents” means the Paying Agent, the Transfer Agent, the Note Registrar, the Conversion Agent and the
Bid Solicitation Agent, in each case, unless the Company is acting in such capacity.
“Applicable PRC Rate” means (i) in the case of deduction or withholding of PRC income tax, 10%, (ii)
in the case of deduction or withholding of PRC value added tax (including any related local levies), 6.72%, or (iii)
in the case of deduction or withholding of both PRC income tax and PRC value added tax (including any related
local levies), 16.72%.
“Authenticating Agent” shall have the meaning specified in Section 2.11.
“Bid Solicitation Agent” means the Company or any Person appointed by the Company to solicit bids for
the Trading Price in accordance with Section 14.01(b)(i). The Company shall initially act as the Bid Solicitation
Agent.
“Board of Directors” means the board of directors of the Company or a committee of such board duly
authorized to act for it hereunder.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
2
“Business Day” means, with respect to any Note, each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the State of New York or the Cayman Islands are
authorized or obligated by law or executive order to close.
“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated) stock issued by that entity.
“Cash Settlement” shall have the meaning specified in Section 14.02(a).
“Change in Law” shall have the meaning specified in clause (e) of the definition of “Fundamental
Change” below.
“Change in Tax Law” shall have the meaning specified in Section 16.01(b).
“Class A Ordinary Shares” means the Class A ordinary shares of the Company, par value US$0.000005
per share, at the date of this Indenture, subject to Section 14.07.
“Class B Ordinary Shares” means the Class B ordinary shares of the Company, par value US$0.000005
per share, at the date of this Indenture, subject to Section 14.07.
“Clause A Distribution” shall have the meaning specified in Section 14.04(c).
“Clause B Distribution” shall have the meaning specified in Section 14.04(c).
“Clause C Distribution” shall have the meaning specified in Section 14.04(c).
“close of business” means 5:00 p.m. (New York City time).
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Combination Settlement” shall have the meaning specified in Section 14.02(a).
“Commission” means the U.S. Securities and Exchange Commission.
“Common Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote
in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or others that will control the management
or policies of such Person.
“Company” shall have the meaning specified in the first paragraph of this Indenture, and subject to the
provisions of Article 11, shall include its successors and assigns.
“Company Group” shall have the meaning specified in clause (e) of the definition of “Fundamental
Change” below.
“Company Notice” shall have the meaning specified in Section 15.01(a).
3
“Company Order” means a written order of the Company, signed by an Officer and delivered to the
Trustee.
“Conversion Agent” means Deutsche Bank Trust Company Americas, the conversion agent with respect
to the Notes and shall also include any successor conversion agent.
“Conversion Consideration” shall have the meaning specified in Section 14.14(a).
“Conversion Date” shall have the meaning specified in Section 14.02(c).
“Conversion Obligation” shall have the meaning specified in Section 14.01(a).
“Conversion Price” means as of any time, US$1,000, divided by the Conversion Rate as of such time.
“Conversion Rate” shall have the meaning specified in Section 14.01(a).
“Corporate Trust Office” means the designated office of the Trustee at which at any time this Indenture
shall be administered, which office at the date hereof is located at 60 Wall Street, 24 Floor, New York, New York,
10005, Attention: Global Transaction Banking – Pinduoduo, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the designated corporate trust office of any
successor trustee (or such other address as such successor trustee may designate from time to time by notice to the
Holders and the Company).
th
“Daily Conversion Value” means, for each of the 40 consecutive Trading Days during the Observation
Period, 2.5% of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP for such
Trading Day.
“Daily Measurement Value” means the Specified Dollar Amount (if any), divided by 40.
“Daily Settlement Amount,” for each of the 40 consecutive Trading Days during the Observation Period,
shall consist of:
(a) cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily
Conversion Value on such Trading Day; and
(b) if the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value,
a number of ADSs equal to (i) the difference between the Daily Conversion Value and the Daily
Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.
“Daily VWAP” means, for each of the 40 consecutive Trading Days during the relevant Observation
Period, the per ADS volume-weighted average price as displayed under the heading “Bloomberg VWAP” on
Bloomberg page “PDD AQR” (or its equivalent successor if such page is not available) in respect of the
period from the scheduled open of trading until the scheduled close of trading of the primary trading session on
such Trading Day (or if such volume-weighted average price is unavailable, the market value of one ADS on such
Trading Day
4
determined, using a volume-weighted average method, by a nationally recognized independent investment
banking firm retained for this purpose by the Company). The “Daily VWAP” shall be determined without regard
to after-hours trading or any other trading outside of the regular trading session trading hours.
“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of
Default.
“Defaulted Amounts” means any amounts on any Note (including, without limitation, the Redemption
Price, the Fundamental Change Repurchase Price, the Repurchase Price, principal and Special Interest, if any) that
are payable but are not punctually paid or duly provided for.
“delivered” means, with respect to any notice to be delivered, given or mailed to a Holder pursuant to this
Indenture, notice (x) given to the Depositary (or its designee) pursuant to the standing instructions from the
Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the
Depositary (in the case of a Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its
address as it appears on the Note Register, in each case in accordance with Section 17.03. Notice so “delivered”
shall be deemed to include any notice to be “mailed” or “given,” as applicable, under this Indenture.
“Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c) as the
Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to
the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.
“Designated Financial Institution” shall have the meaning specified in Section 14.14(a).
“Distributed Property” shall have the meaning specified in Section 14.04(c).
“DTC” means The Depository Trust Company, a New York corporation.
“Effective Date” shall have the meaning specified in Section 14.03(c), except that, as used in Section
14.04 and Section 14.05, “Effective Date” means the first date on which ADSs trade on the applicable exchange
or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.
“Event of Default” shall have the meaning specified in Section 6.01.
“Ex-Dividend Date” means the first date on which the ADSs trade on the applicable exchange or in the
applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from
the Company or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or
otherwise) as determined by such exchange or market.
5
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exchange Election” shall have the meaning specified in Section 14.14(a).
“Expiring Rights” means any rights, options or warrants to purchase Class A Ordinary Shares or ADSs
that expire on or prior to the Maturity Date.
“FATCA” shall have the meaning specified in Section 4.07(a)(i)(D).
“Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as
Attachment 4 to the Form of Note attached hereto as Exhibit A.
“Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A.
“Form of Fundamental Change Repurchase Notice” shall mean the “Form of Fundamental Change
Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.
“Form of Notice of Conversion” shall mean the “Form of Notice of Conversion” attached as Attachment
1 to the Form of Note attached hereto as Exhibit A.
“Form of Repurchase Notice” shall mean the “Form of Repurchase Notice” attached as Attachment 3 to
the Form of Note attached hereto as Exhibit A.
“Fundamental Change” shall be deemed to have occurred at the time after the Notes are originally issued
if any of the following occurs:
(a) except as described in clause (b) below, (A) a “person” or “group” within the meaning of
Section 13(d) of the Exchange Act, other than the Company, its Subsidiaries, the employee benefit plans of
the Company and its Subsidiaries or any Permitted Holder, files a Schedule TO or any schedule, form or
report under the Exchange Act disclosing that such person or group has become the direct or indirect
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s ordinary share
capital (including ordinary share capital held in the form of ADSs) representing more than 50% of the
voting power of the Company’s ordinary share capital or (B) a “person” or “group” within the meaning of
Section 13(d) of the Exchange Act files a Schedule TO or any schedule, form or report under the Exchange
Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined
in Rule 13d-3 under the Exchange Act, of more than 50% of the Company’s then outstanding Class A
Ordinary Shares (including Class A Ordinary Shares held in the form of ADSs); provided, however, that
for purposes of clause (B), in calculating the beneficial ownership percentage of the Class A Ordinary
Shares held by any Permitted Holder, any Class A Ordinary Shares (including Class A Ordinary Shares
held in the form of ADSs) issued or issuable on conversion of Class B Ordinary Shares, or conversion,
exchange or exercise of other securities, in any such case beneficially owned directly or indirectly by any
Permitted Holder on the date hereof or issued or issuable by the Company to any Permitted Holder after
the date hereof pursuant to rights attached to, or a dividend or other distribution on, any such Class B
Ordinary Shares or other securities so owned on the date hereof (or any
6
Class A Ordinary Shares into which they may convert or be exchanged or exercised) shall be
excluded from both the numerator and denominator;
(b) the consummation of (A) any recapitalization, reclassification or change of the Class A
Ordinary Shares or the ADSs (other than changes resulting from a subdivision or combination) as a result
of which the Class A Ordinary Shares or the ADSs would be converted into, or exchanged for, stock, other
securities, other property or assets; (B) any share exchange, consolidation or merger of the Company or
any similar transaction pursuant to which the Class A Ordinary Shares or the ADSs will be converted into
cash, securities or other property; or (C) any sale, lease or other transfer in one transaction or a series of
transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries and
consolidated affiliated entities, taken as a whole, to any Person other than one of the Company’s wholly-
owned Subsidiaries or one of the Company’s consolidated affiliated entities in which the Company has the
right to exercise, directly or indirectly, 100% of the equity holders’ voting rights and where such sale, lease
or transfer to such consolidated affiliated entity does not result in the Company ceasing to derive
substantially the same economic benefits from the sold, leased or transferred business operations as the
Company derived from such business operations prior to such sale, lease or transfer; provided, however,
that a transaction described in clause (B) in which the holders of all classes of the Company’s ordinary
share capital immediately prior to such transaction are entitled to exercise, directly or indirectly, more than
50% of the total voting power of all shares of Capital Stock entitled to vote generally in the election of
directors of the continuing or surviving corporation or transferee or the parent thereof immediately after
such transaction in substantially the same proportions as their respective ownership of the Company’s
voting securities immediately prior to such transaction shall not be a Fundamental Change pursuant to this
clause (b);
(c) the shareholders of the Company approve any plan or proposal for the liquidation or
dissolution of the Company;
(d) the ADSs (or Class A Ordinary Shares or other Common Equity or American Depositary
Shares in respect of Reference Property) cease to be listed or quoted on any of The Nasdaq Global Select
Market, The Nasdaq Global Market or The New York Stock Exchange, (or any of their respective
successors) and none of the ADSs, Class A Ordinary Shares, other common equity and ADSs in respect of
Reference Property is listed or quoted on one of The Nasdaq Global Select Market, The Nasdaq Global
Market or The New York Stock Exchange (or any of their respective successors) within one Trading Day
of such cessation; or
(e) any change in or amendment to the laws, regulations and rules of the PRC or the official
interpretation or official application thereof (a “Change in Law”) that results in (x) the Company, its
Subsidiaries and its consolidated affiliated entities (collectively, the “Company Group”) (as in existence
immediately subsequent to such Change in Law), as a whole, being legally prohibited from operating
substantially all of the business operations conducted by the Company Group (as in existence
immediately prior to such Change in Law) as of the last date of the period described in the Company’s
consolidated financial statements for the most recent fiscal quarter and (y) the Company being unable to
continue to derive substantially all of the economic benefits from the business operations conducted by the
Company Group (as in existence immediately prior to such Change in
7
Law) in the same manner as reflected in the Company’s consolidated financial statements for the most
recent fiscal quarter;
provided, however, that a transaction or transactions described in clause (a) or (b) above shall not constitute a
Fundamental Change, if at least 90% of the consideration received or to be received by holders of the ADSs,
excluding cash payments for fractional ADSs and cash payments made pursuant to dissenters’ appraisal rights, in
connection with such transaction or transactions consists of shares of Common Equity or ADSs in respect of
Common Equity that are listed or quoted on any of The Nasdaq Global Select Market, The Nasdaq Global Market
or The New York Stock Exchange (or any of their respective successors) or will be so listed or quoted when
issued or exchanged in connection with such transaction or transactions and as a result of such transaction or
transactions such consideration, excluding cash payments for fractional ADSs, becomes Reference Property for
the Notes.
“Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(c).
“Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.02(a).
“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 15.02(b)(i).
“Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.02(a).
“Global Note” shall have the meaning specified in Section 2.05(b).
“Holder,” as applied to any Note, or other similar terms, shall mean any Person in whose name at the time
a particular Note is registered on the Note Register.
“Indenture” means this instrument as originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented.
“Last Reported Sale Price” of the ADSs on any date means the closing sale price per ADS (or if no
closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average
of the average bid and the average ask prices) on that date as reported in composite transactions for the principal
U.S. national or regional securities exchange on which the ADSs are traded. If the ADSs are not listed for trading
on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be
the last quoted bid price for the ADSs in the over-the-counter market on the relevant date as reported by OTC
Markets Group Inc. or a similar organization. If the ADSs are not so quoted, the “Last Reported Sale Price”
shall be the average of the mid-point of the last bid and ask prices for the
8
ADSs on the relevant date from each of at least three nationally recognized independent investment banking firms
selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without regard to
after-hours trading or any other trading outside of regular trading session hours.
“Make-Whole Fundamental Change” means any transaction or event described in clause (a), (b), (d) or
(e) of the definition of Fundamental Change (determined after giving effect to any exceptions to or exclusions
from such definition, including in the proviso immediately succeeding clause (e) of the definition thereof, but
without regard to the proviso in clause (b) of the definition thereof).
“Market Disruption Event” means, for the purposes of determining amounts due upon conversion (a) a
failure by the primary U.S. national or regional securities exchange or market on which the ADSs are listed or
admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior
to 1:00 p.m., New York City time, on any Scheduled Trading Day for the ADSs for more than one half-hour
period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason
of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the ADSs or in
any options contracts or futures contracts relating to the ADSs.
“Maturity Date” means October 1, 2024.
“Measurement Period” shall have the meaning specified in Section 14.01(b)(i).
“Merger Event” shall have the meaning specified in Section 14.07(a).
“Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of this Indenture.
“Note Register” shall have the meaning specified in Section 2.05(a).
“Note Registrar” shall have the meaning specified in Section 2.05(a).
“Notes Fungibility Date” means the date, if any, following the Resale Restriction Termination Date on
which all of the Rule 144A Notes and all of the Regulation S Notes are no longer Restricted Securities, do not
bear the restrictive legend required by Section 2.05(c), are fungible for U.S. securities law purposes and are
assigned an identical, unrestricted CUSIP number.
“Notice of Conversion” shall have the meaning specified in Section 14.02(b).
“Observation Period” with respect to any Note surrendered for conversion means: (i) subject to clause
(ii), if the relevant Conversion Date occurs prior to April 1, 2024, the 40 consecutive Trading Day period
beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; (ii) if the
relevant Conversion Date occurs on or after the date of the Company’s issuance of a Redemption Notice with
respect to the Notes pursuant to Section 16.01 or Section 16.02 and prior to the relevant Tax Redemption Date or
Optional Redemption Date, the 40 consecutive Trading Days beginning on, and including, the
9
41st Scheduled Trading Day immediately preceding such Tax Redemption Date or Optional Redemption Date;
and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or after April 1, 2024, the 40 consecutive
Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding the Maturity
Date.
“Offering Memorandum” means the preliminary offering memorandum dated September 23, 2019, as
supplemented by the pricing term sheet dated September 24, 2019, relating to the offering and sale of the Notes.
“Officer” means, with respect to the Company, the Chairman, the President, the Chief Executive Officer,
the Chief Financial Officer, the Treasurer, the Secretary, or any Vice President (in each case, whether or not such
person is designated by a number or numbers or word or words added before or after the title of such person).
“Officer’s Certificate,” when used with respect to the Company, means a certificate that is delivered to
the Trustee and that is signed by an Officer of the Company. Each such certificate shall include the statements
provided for in Section 17.06 if and to the extent required by the provisions of such Section. The Officer giving an
Officer’s Certificate pursuant to Section 4.09 shall be the principal executive, financial or accounting officer of the
Company.
“open of business” means 9:00 a.m. (New York City time).
“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of
or counsel to the Company, or other counsel who is reasonably acceptable to the Trustee, that is delivered to the
Trustee, which opinion may contain customary exceptions and qualifications as to the matters set forth therein.
Each such opinion shall include the statements provided for in Section 17.06 if and to the extent required by the
provisions of such Section 17.06.
“Optional Redemption” shall have the meaning specified in Section 16.01 and Section 16.02, as
applicable.
“Optional Redemption Date” shall have the meaning specified in Section 16.02(a).
“Optional Redemption Notice” shall have the meaning specified in Section 16.02(b).
“Ordinary Shares” means the Class A Ordinary Shares and the Class B Ordinary Shares.
“outstanding,” when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean,
as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b) Notes, or portions thereof, that have become due and payable and in respect of which
monies in the necessary amount shall have been deposited with the
10
Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent);
(c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in
substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of
Section 2.06 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected
purchasers in due course;
(d) Notes converted pursuant to Article 14 and required to be cancelled pursuant to Section
2.08;
(e) Notes redeemed pursuant to Article 16; and
(f) Notes repurchased by the Company pursuant to the third sentence of Section 2.10.
“Paying Agent” means Deutsche Bank Trust Company Americas, the paying agent with respect to the
Notes and shall also include any successor paying agent.
“Paying Agent Office” means the designated office of the Paying Agent at which at any time this
Indenture shall be administered, which office at the date hereof is located at located at 60 Wall Street, 24 Floor,
New York, New York, 10005, Attention: Global Transaction Banking – Pinduoduo, or such other address as the
Paying Agent may designate from time to time by notice to the Holders and the Company, or the designated office
of any successor paying agent (or such other address as such successor paying agent may designate from time to
time by notice to the Holders and the Company).
th
“Permitted Holder” means (i) any holder or “beneficial owner,” as defined in Rule 13d-3 under the
Exchange Act, of the Class B Ordinary Shares as of the date hereof and permitted transferees of such holder or
beneficial owner under the terms of the Class B Ordinary Shares as of the date hereof and (ii) any “group” within
the meaning of Section 13(d) of the Exchange Act consisting of one or more Permitted Holders.
“Person” means an individual, a corporation, a limited liability company, an association, a partnership, a
joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a
political subdivision thereof.
“Physical Notes” means permanent certificated Notes in registered form issued in minimum
denominations of US$1,000 principal amount and integral multiples of US$1,000 in excess thereof.
“Physical Settlement” shall have the meaning specified in Section 14.02(a).
“PRC” means the People’s Republic of China, excluding, for the purpose of this Indenture only, Taiwan,
Hong Kong, and Macau.
11
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the
same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen
Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the
holders of the Class A Ordinary Shares (directly or in the form of ADSs) (or other applicable security) have the
right to receive any cash, securities or other property or in which the Class A Ordinary Shares (directly or in the
form of ADSs) (or such other security) are exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of security holders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors, statute, contract or otherwise).
“Redemption Notice” shall have the meaning specified in specified in Section 16.02(b).
“Redemption Price” shall have the meaning specified in Section 16.01(b).
“Redemption Reference Date” shall have the meaning specified in Section 14.03(g).
“Redemption Reference Price” shall have the meaning specified in Section 14.03(g).
“Reference Property” shall have the meaning specified in Section 14.07(a).
“Regulation S” means Regulation S under the Securities Act or any successor to such regulation.
“Regulation S Notes” means the Notes initially offered and sold outside the United States pursuant to
Regulation S.
“Relevant Jurisdiction” shall have the meaning specified in Section 4.07(a).
“Relevant Taxing Jurisdiction” shall have the meaning specified in Section 4.07(a).
“Repurchase Date” shall have the meaning specified in Section 15.01(a).
“Repurchase Expiration Time” shall have the meaning specified in Section 15.01(a).
“Repurchase Notice” shall have the meaning specified in Section 15.01(a).
“Repurchase Price” shall have the meaning specified in Section 15.01(a).
“Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).
“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee having direct responsibility for the administration of this Indenture or to whom any
corporate trust matter relating to this Indenture is referred because of such Person’s knowledge of and familiarity
with the particular subject.
12
“Restricted Deposit Agreement” means the Deposit Agreement, dated as of the date hereof, among the
Company, the ADS Depositary, and the holders and beneficial owners from time to time of the restricted ADSs
issued thereunder, delivered thereunder or, if amended or supplemented as provided therein, as so amended or
supplemented.
“Restricted Securities” shall have the meaning specified in Section 2.05(c).
“Rule 144” means Rule 144 as promulgated under the Securities Act.
“Rule 144A” means Rule 144A as promulgated under the Securities Act.
“Rule 144A Notes” means the notes initially offered and sold pursuant to Rule 144A.
“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S.
national or regional securities exchange or market on which the ADSs are listed or admitted for trading. If the
ADSs are not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Settlement Amount” has the meaning specified in Section 14.02(a)(iv).
“Settlement Method” means, with respect to any conversion of Notes, Physical Settlement, Cash
Settlement or Combination Settlement, as elected (or deemed to have been elected) by the Company.
“Settlement Notice” has the meaning specified in Section 14.02(a)(iii).
“Significant Subsidiary” means a Subsidiary of the Company that meets the definition of “significant
subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act. Each of the Company’s
consolidated affiliated entities will be deemed to be a “subsidiary” for the purposes of the definition of
“significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X.
“Special Interest” means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and
Section 6.03, as applicable.
“Special Interest Payment Date” means, if and to the extent that Special Interest is payable on the Notes,
each April 1 and October 1 of each year, beginning on April 1, 2020.
“Special Interest Record Date” with respect to any Special Interest Payment Date, means the March 15
and September 15 (whether or not such day is a Business Day) immediately preceding the applicable April 1 or
October 1 Special Interest Payment Date, respectively.
“Specified Dollar Amount” means the maximum cash amount per US$1,000 principal amount of Notes
to be received upon conversion as specified in the Settlement Notice related to any converted Notes (or deemed
specified pursuant to Section 14.02(a)(iii)).
13
“Spin-Off” shall have the meaning specified in Section 14.04(c).
“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more
Subsidiaries of such Person. For the avoidance of doubt, the term “Subsidiary” or “Subsidiaries” should include
the Company’s consolidated affiliated entities, including its variable interest entities and their Subsidiaries.
“Successor Company” shall have the meaning specified in Section 11.01(a).
“Tax Redemption Date” shall have the meaning specified in Section 16.01(b).
“Tax Redemption Notice” shall have the meaning specified in Section 16.01(b)
“Trading Day” means a day on which (i) trading in the ADSs (or other security for which a closing sale
price must be determined) generally occurs on The Nasdaq Global Market or, if the ADSs (or such other security)
are not then listed on The Nasdaq Global Market, on the principal other U.S. national or regional securities
exchange on which the ADSs (or such other security) are then listed or, if the ADSs (or such other security) are
not then listed on a U.S. national or regional securities exchange, on the principal other market on which the
ADSs (or such other security) are then traded and (ii) a Last Reported Sale Price for the ADSs (or closing sale
price for such other security) is available on such securities exchange or market; provided that, if the ADSs (or
such other security) are not so listed or traded, “Trading Day” means a Business Day; and provided, further, that
for purposes of determining amounts due upon conversion only, “Trading Day” means a day on which (x) there is
no Market Disruption Event and (y) trading in the ADSs generally occurs on The Nasdaq Global Market or, if the
ADSs are not then listed on The Nasdaq Global Market, on the principal other U.S. national or regional securities
exchange on which the ADSs are then listed or, if the ADSs are not then listed on a U.S. national or regional
securities exchange, on the principal other market on which the ADSs are then listed or admitted for trading,
except that if the ADSs are not so listed or admitted for trading, “Trading Day” means a Business Day.
“Trading Price” means, with respect to the Notes and any date of determination, the average of the
secondary market bid quotations obtained by the Bid Solicitation Agent for US$1,000,000 principal amount of
Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent
nationally recognized securities dealers the Company selects for this purpose; provided that if three such bids
cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of
the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that
one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for US$1,000,000
principal amount of Notes from a nationally recognized securities dealer on any determination date, then the
Trading Price per US$1,000 principal amount of Notes on such
14
determination date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the
ADSs and the Conversion Rate.
“transfer” shall, as used in Section 2.05(c) and Section 2.05(d), have the meaning specified in Section
2.05(c).
“Transfer Agent” means Deutsche Bank Trust Company Americas, the transfer agent with respect to the
Notes and shall also include any successor transfer agent.
“Trigger Event” shall have the meaning specified in Section 14.04(c).
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date
of execution of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended
after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the
Trust Indenture Act of 1939, as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a
successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Trustee” shall mean or include each Person who is then a Trustee hereunder.
“unit of Reference Property” shall have the meaning specified in Section 14.07(a).
“Unrestricted Deposit Agreement” means the Deposit Agreement, dated as of July 25, 2018, by and
among the Company, the ADS Depositary, and the holders and beneficial owners from time to time of the ADSs
issued thereunder, delivered thereunder or, if amended or supplemented as provided therein, as so amended or
supplemented.
“Valuation Period” shall have the meaning specified in Section 14.04(c).
Section 1.02 References to Interest. Unless the context otherwise requires, any reference to interest on, or
in respect of, any Note in this Indenture shall be deemed to refer solely to Special Interest if, in such context,
Special Interest is, was or would be payable pursuant to any of Section 4.06(d), Section 4.06(e) and Section 6.03.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “0% Convertible Senior
Notes due 2024.” The aggregate principal amount of Notes that may be authenticated and delivered under this
Indenture is initially limited to US$1,000,000,000, subject to Section 2.10 and except for Notes authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.05,
Section 2.06, Section 2.07, Section 10.04, Section 14.02 and Section 15.04.
Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such
Notes shall be substantially in the respective forms set forth in Exhibit A, the
15
terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this
Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this Indenture as may be required by the Depositary, or as may be
required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any
securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for
issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to
which any particular Notes are subject.
Any of the Notes may have such letters, numbers or other marks of identification and such notations,
legends or endorsements as the Officer executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be listed or designated for issuance,
or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are
subject.
Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified
therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from
time to time be increased or reduced to reflect redemptions, repurchases, cancellations, conversions, transfers or
exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease
in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Registrar, at the
direction of the Trustee in such manner and upon instructions given by the Holder of such Notes in accordance
with this Indenture. Payment of principal (including the Redemption Price, the Repurchase Price and the
Fundamental Change Repurchase Price, if applicable) of, and any accrued and unpaid Special Interest on, a
Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means
of determining Holders eligible to receive payment is provided for herein.
Section 2.03 Date and Denomination of Notes; No Regular Interest; Payments of Special Interest and
Defaulted Amounts. (a) The Notes shall be issuable in registered form without coupons in minimum
denominations of US$1,000 principal amount and integral multiples of US$1,000 in excess thereof. Each Note
shall be dated the date of its authentication and shall not bear regular interest, and the principal amount of the
Notes will not accrete. Special Interest on the Notes, if any, shall be computed on the basis of a 360-day year
composed of twelve 30-day months and, for partial months, on the basis of actual days elapsed over a 30-day
month.
(b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at
the close of business on any Special Interest Record Date with respect to any
16
Special Interest Payment Date shall be entitled to receive any Special Interest payable on such Special Interest
Payment Date. The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the
office or agency of the Company maintained by the Company for such purposes in the contiguous United States,
which shall initially be the Paying Agent Office and (y) in the case of any Global Note, shall be payable by wire
transfer of immediately available funds to the account of the Depositary or its nominee. The Company shall pay,
or cause the Paying Agent to pay (to the extent funded by the Company), any Special Interest (i) on any Physical
Notes to Holders holding Physical Notes by wire transfer in immediately available funds to the account within the
United States specified by the Holder or (ii) on any Global Note by wire transfer of immediately available funds
to the account of the Depositary or its nominee.
(c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment
date and shall not accrue interest unless Special Interest is payable pursuant to this Indenture on the relevant
payment date, in which case such Defaulted Amounts shall accrue interest per annum at the rate of Special
Interest and to the extent that such Special Interest remains payable pursuant to this Indenture, subject to the
enforceability thereof under applicable law, from, and including, such relevant payment date, and such Defaulted
Amounts together with any such Special Interest thereon shall be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Amounts to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a
special record date for the payment of such Defaulted Amounts, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts
proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25
days after the receipt by the Trustee of such notice, unless the Trustee in its sole discretion shall consent to
an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the
payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Company shall promptly notify the Trustee and Holders of the proposed
payment of such Defaulted Amounts and the special record date therefor at its address as it appears in the
Note Register or by electronic means to the Depositary in the case of Global Notes, not less than 10 days
prior to such special record date. Notice of the proposed payment of such Defaulted Amounts and the
special record date therefor having been so delivered, such Defaulted Amounts shall be paid to the Persons
in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on
such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section
2.03(c). The Trustee shall have no responsibility whatsoever for the calculation of any Defaulted Amounts.
17
(ii) The Company may make payment of any Defaulted Amounts in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated quotation system on which
the Notes may be listed or designated for issuance, and upon such notice as may be required by such
exchange or automated quotation system, if, after written notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Section 2.04 Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and
on behalf of the Company by the manual or facsimile signature of any of its Chief Executive Officer, President,
Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior Vice Presidents. Typographical and
other minor errors or defects in any signature shall not affect the validity or enforceability of any Note which has
been duly authenticated and delivered by the Trustee.
At any time and from time to time after the execution and delivery of this Indenture, the Company may
deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Notes, without any further action by the Company hereunder; provided that the
Trustee shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel with respect to the issuance,
authentication and delivery of such Notes.
The Company Order shall specify the amount of Notes to be authenticated (including the initial amount of
Rule 144A Notes and the initial amount of Regulation S Notes) the applicable rate at which interest will accrue on
such Notes, the date on which the original issuance of such Notes is to be authenticated, the date from which
interest will begin to accrue, the date or dates on which interest on such Notes will be payable and the date on
which the principal of such Notes will be payable and other terms relating to such Notes. The Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of the Company (as set forth in such
Company Order).
Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on
the form of Note attached as Exhibit A hereto, executed manually by an authorized officer of the Trustee, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee
upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer
before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the Person who
signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of
the Company by such Persons as, at the actual date of the execution of such Note, shall be the Officers of the
Company, although at the date of the execution of this Indenture any such Person was not such an Officer.
18
Section 2.05 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a)
The Company shall cause to be kept at the Paying Agent Office a register (the register maintained in such office
or in any other office or agency of the Company designated pursuant to Section 4.02, the “Note Register”) in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being
converted into written form within a reasonable period of time. Deutsche Bank Trust Company Americas is
hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as
herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
Prior to the Notes Fungibility Date, upon surrender for registration of transfer of any Rule 144A Note or
Regulation S Note, as the case may be, to the Note Registrar or any co-Note Registrar, and satisfaction of the
requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new Rule 144A
Notes or Regulation S Notes, as the case may be, of any authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may be required by this Indenture. Following the Notes
Fungibility Date, upon surrender for registration of transfer of any Note to the Note Registrar or any co-Note
Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one
or more new Notes of any authorized denominations and of a like aggregate principal amount and not bearing the
restrictive legends required by Section 2.05(c).
Prior to the Notes Fungibility Date, Rule 144A Notes and Regulation S Notes, as the case may be, may be
exchanged for other Rule 144A Notes or Regulation S Notes, as the case may be, of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Rule 144A Notes or Regulation S Notes, as the
case may be, to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02.
Whenever any Rule 144A Notes or Regulation S Notes, as the case may be, are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Rule 144A Notes or Regulation S
Notes, as the case may be, that the Holder making the exchange is entitled to receive, bearing registration numbers
not contemporaneously outstanding. Following the Notes Fungibility Date, Notes may be exchanged for other
Notes of any authorized denominations and of a like aggregate principal amount but not bearing the restrictive
legend required by Section 2.05(c), upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the
exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or conversion
shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed,
or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and
duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.
19
No service charge shall be imposed by the Company, the Trustee, the Transfer Agent, the Note Registrar or
any co-Note Registrar for any exchange or registration of transfer of Notes, but the Company may require a
Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in
connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration
of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration
of transfer. The Company shall pay the ADS Depositary’s fees for issuance of the ADSs.
None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to
exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is
surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes, or a portion of any
Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 or (iii) any Notes selected for
redemption in accordance with Article 16 or (iv) any Notes between a Special Interest Record Date and
corresponding Special Interest Payment Date.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture
shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise
required by law, subject to the fourth paragraph from the end of Section 2.05(c) all Notes shall be represented by
one or more Notes in global form, without interest coupons, (each, a “Global Note”) registered in the name of the
Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests in a Global Note
that does not involve the issuance of a Physical Note shall be effected through the Depositary in accordance with
this Indenture (including the restrictions on transfer set forth herein) and the applicable procedures of the
Depositary therefor. Prior to the Notes Fungibility Date, the Rule 144A Notes shall be represented by one or more
Global Notes and the Regulation S Notes shall be represented by one or more separate Global Notes. Following
the Notes Fungibility Date, the Rule 144A Notes and the Regulation S Notes may be represented by one or more
of the same Global Notes.
(c) Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this
Section 2.05(c) (together with any ADSs (including the Class A Ordinary Shares represented thereby) delivered
upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including
the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written
consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof,
agrees to be bound by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the
term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date that is one year
after the last date of original issuance of the Notes, or such shorter period of
20
time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any, as may be
required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor or
substitution thereof, other than ADSs (including the Class A Ordinary Shares represented thereby) issued upon
conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable) shall bear a legend in
substantially the following form (unless such Notes have been transferred pursuant to a registration statement that
has become or been declared effective under the Securities Act and that continues to be effective at the time of
such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in
force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the
Trustee):
THIS SECURITY, THE AMERICAN DEPOSITARY SHARES DELIVERABLE UPON CONVERSION
OF THIS SECURITY, IF ANY, AND THE CLASS A ORDINARY SHARES REPRESENTED THEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), ARE “RESTRICTED SECURITIES” WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT OR CONTRACTUALLY RESTRICTED SECURITIES, AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS (a) A
“QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) OR (b) LOCATED OUTSIDE THE UNITED STATES AND NOT A U.S. PERSON
(WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT
AND THAT IT AND ANY SUCH ACCOUNT IS NOT, AND HAS NOT BEEN FOR THE
IMMEDIATELY PRECEDING THREE MONTHS, AN AFFILIATE OF PINDUODUO INC. (THE
“COMPANY”), AND
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY, THE AMERICAN DEPOSITARY
SHARES DELIVERABLE UPON CONVERSION OF THIS SECURITY AND THE CLASS A
ORDINARY SHARES REPRESENTED THEREBY, OR ANY BENEFICIAL INTEREST HEREIN
PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL
ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144
UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT, OR
21
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, OR
(D) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE).
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE,
THE COMPANY, THE DEPOSITARY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS
BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY
OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY DURING THE THREE IMMEDIATELY PRECEDING MONTHS MAY
PURCHASE, OTHERWISE ACQUIRE OR OWN THIS NOTE OR, THE AMERICAN DEPOSITARY
SHARES DELIVERABLE UPON CONVERSION HEREOF AND THE CLASS A ORDINARY SHARES
REPRESENTED THEREBY, A BENEFICIAL INTEREST HEREIN.
No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note
Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.
Any Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer
shall have expired in accordance with their terms may, upon surrender of such Note for exchange to the Note
Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like
tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(c)
and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Trustee in
writing to so surrender any Global Note as to which such restrictions on transfer shall have expired in accordance
with their terms for exchange, and, upon such instruction, the Trustee shall so surrender such Global Note for
exchange; and any new Global Note so exchanged therefor shall not bear the restrictive legend specified in this
Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the
Trustee in writing upon the occurrence of the Resale Restriction Termination Date and after a registration
statement, if any, with respect to the Notes or the ADSs (including the Class A Ordinary Shares represented
thereby) issued upon conversion of the Notes has been declared effective under the Securities
22
Act. Any exchange pursuant to the foregoing paragraph shall be in accordance with the applicable procedures of
the Depositary.
Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section
2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii)
for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second
immediately succeeding paragraph.
The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially
appoints The Depository Trust Company to act as Depositary with respect to each Global Note. Initially, each
Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Trustee as custodian for Cede & Co.
If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to
continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, (ii) the
Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not
appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is continuing and,
subject to the Depositary’s applicable procedures, a beneficial owner of any Note requests that its beneficial
interest therein be issued as a Physical Note, the Company shall execute, and the Trustee, upon receipt of an
Officer’s Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and
deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to the
principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of
clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an
aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such
Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall
be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, or, in the case of clause (iii) of the immediately preceding
paragraph, the relevant beneficial owner, shall instruct the Trustee. Upon execution and authentication, the Trustee
shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.
At such time as all interests in a Global Note have been converted, canceled, repurchased, redeemed or
transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing
procedures and existing instructions of the Depositary. At any time prior to such cancellation, if any interest in a
Global Note is exchanged for Physical Notes, converted, canceled, repurchased, redeemed or transferred to a
transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such
Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and
23
existing instructions of the Depositary, be appropriately reduced or increased, as the case may be, and an
endorsement shall be made on such Global Note, by the Trustee, to reflect such reduction or increase.
None of the Company, the Trustee, any agent of the Company or any agent of the Trustee shall have any
responsibility or liability for the payment of amounts to beneficial holders, any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
(d) Until the Resale Restriction Termination Date, any certificate representing ADSs (including the
Class A Ordinary Shares represented thereby) issued upon conversion of such Note shall bear a legend in
substantially the following form (unless the Note or such ADSs (including the Class A Ordinary Shares
represented thereby) has been transferred pursuant to a registration statement that has become or been declared
effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act,
or such ADS or the Class A Ordinary Shares represented thereby have been issued upon conversion of Notes that
have been transferred pursuant to a registration statement that has become or been declared effective under the
Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from
registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless
otherwise agreed by the Company with written notice thereof to the Trustee and the ADS Depositary):
THE AMERICAN DEPOSITARY SHARES EVIDENCED HEREBY AND THE CLASS A ORDINARY
SHARES REPRESENTED THEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), ARE “RESTRICTED SECURITIES” WITHIN THE
MEANING OF RULE 144 UNDER THE SECURITIES ACT OR CONTRACTUALLY RESTRICTED
SECURITIES, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR
OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS (a) A
“QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) OR (b) LOCATED OUTSIDE THE UNITED STATES AND NOT A U.S. PERSON
(WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT
AND THAT IT AND ANY SUCH ACCOUNT IS NOT, AND HAS NOT BEEN FOR THE
IMMEDIATELY PRECEDING THREE MONTHS, AN AFFILIATE OF PINDUODUO INC. (THE
“COMPANY”), AND
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY, THE AMERICAN DEPOSITARY
SHARES EVIDENCED HEREBY AND THE CLASS A
24
ORDINARY SHARES REPRESENTED THEREBY, OR ANY BENEFICIAL INTEREST HEREIN
PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL
ISSUE DATE OF THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY
WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, OR
(D) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE).
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE,
THE COMPANY AND THE DEPOSITARY RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE
REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN
COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY
OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY DURING THE THREE IMMEDIATELY PRECEDING MONTHS MAY
PURCHASE, OTHERWISE ACQUIRE OR OWN THE AMERICAN DEPOSITARY SHARES EVIDENCED
HEREBY OR A BENEFICIAL INTEREST THEREIN.
Any such ADSs as to which such restrictions on transfer shall have expired in accordance with their terms
may, upon surrender of the certificates representing such ADSs for exchange in accordance with the procedures of
the ADS Depositary and the Restricted Deposit Agreement, be exchanged for a new certificate or certificates for a
like aggregate number of ADSs, which shall not bear the restrictive legend required by this Section 2.05(d).
25
(e) Any Note or ADS (including the Class A Ordinary Shares represented thereby) delivered upon the
conversion or exchange of any Note that is repurchased or owned by any Affiliate of the Company (or any Person
who was an Affiliate of the Company at any time during the three months immediately preceding) may not be
resold by such Affiliate (or such Person) unless registered under the Securities Act or resold pursuant to an
exemption from, or in a transaction not subject to, the registration requirements of the Securities Act in a
transaction that results in such Note or ADS, as the case may be, no longer being a “restricted security” (as
defined under Rule 144). The Company shall cause any Note that is repurchased or owned by it to be surrendered
to the Paying Agent for cancellation in accordance with Section 2.08.
(f) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any securities laws or restrictions on transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by
the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
(g) Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or
not taken by the Depositary.
Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon its written request the Trustee shall
authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in
exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen. In every case the applicant for a substituted Note shall furnish to the Company and to the Trustee such
security, pre-funding and/or indemnity as may be required by them to save each of them harmless from any loss,
liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
The Trustee may authenticate any such substituted Note and deliver the same upon the receipt of such
security, pre- funding and/or indemnity as the Trustee and the Company may require. No service charge shall be
imposed by the Company, the Transfer Agent, the ADS Depositary, the Note Registrar, any co-Note Registrar or
the Paying Agent upon the issuance of any substitute Note, but the Company and the Trustee may require a
Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in
connection therewith as a result of the name of the Holder of the new substitute Note being different from the
name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that
has matured or is about to mature or has been surrendered for required repurchase or is about to be converted in
accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole
discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if
the
26
applicant for such payment or conversion shall furnish to the Company and to the Trustee such security, pre-
funding and/or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or
expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence
satisfactory to the Company, and the Trustee evidence of their satisfaction of the destruction, loss or theft of such
Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any
Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but
shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement, payment, redemption,
conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement, payment, redemption, conversion or repurchase of negotiable instruments or other securities without
their surrender.
Section 2.07 Temporary Notes. Pending the preparation of Physical Notes, the Company may execute
and the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or
lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of
the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes,
all as may be determined by the Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same
effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the Trustee
Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global
Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to
Section 4.2 and the Trustee shall authenticate and deliver in exchange for such temporary Notes an equal
aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and
delivered hereunder.
Section 2.08 Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes
surrendered for the purpose of payment, repurchase, redemption, registration of transfer or exchange or
conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents,
Subsidiaries, consolidated affiliated entities or Affiliates), to be delivered and surrendered to the Trustee for
cancellation. All Notes delivered to the Trustee shall be canceled promptly by it, and except for Notes surrendered
for transfer or exchange, no Notes shall be authenticated in exchange thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with its customary
procedures and, after such disposition, shall deliver a certificate of such cancellation and disposition to the
Company, at the Company’s written request in a Company Order.
27
Section 2.09 CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a
convenience to such Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only
on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in
writing of any change in the “CUSIP” or “ISIN” numbers, as applicable. Prior to the Notes Fungibility Date, the
Rule 144A Notes and the Regulation S Notes shall have different “CUSIP” numbers. Following the Notes
Fungibility Date, the Rule 144A Notes and the Regulation S Notes shall have the same “CUSIP” or “ISIN”
number, as applicable.
Section 2.10 Additional Notes; Repurchases. The Company may, without the consent of the Holders and
notwithstanding Section 2.01, reopen this Indenture and issue additional Notes hereunder with the same terms as
the Notes initially issued hereunder (except for any differences in the issue price, the issue date and Special
Interest accrued, if any) in an unlimited aggregate principal amount; provided that if any such additional Notes are
not fungible with the Notes initially issued hereunder for U.S. federal income tax or securities law purposes, such
additional Notes shall have a separate CUSIP number from both the Rule 144A Notes and the Regulation S Notes.
Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an
Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such
matters required by Section 17.06. In addition, the Company may, to the extent permitted by law, and directly or
indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open
market or otherwise, whether by the Company or through its Subsidiaries or consolidated affiliated entities or
through a private or public tender or exchange offer or through counterparties to private agreements. The
Company shall cause any Notes so repurchased to be surrendered to the Trustee for cancellation in accordance
with Section 2.08, and they will no longer be considered “outstanding” under this Indenture upon their
cancellation. The Company may also enter into cash-settled swaps or other derivatives with respect to the Notes.
For the avoidance of doubt, any Notes underlying such cash-settled swaps or other derivatives shall not be
required to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and will continue to be
considered “outstanding” for purposes of this Indenture, subject to the provisions of Section 8.04.
Section 2.11 Appointment of Authenticating Agent. As long as any Notes remain outstanding, the
Trustee may, by an instrument in writing, appoint with the approval of the Company an authenticating agent (an
“Authenticating Agent”), which shall be authorized to act on behalf of the Trustee to authenticate Notes pursuant
to this Indenture. Notes authenticated by such Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference
is made in this Indenture to the authentication and delivery of Notes by the Trustee or to the Trustee’s certificate
of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Such Authenticating Agent shall at all times be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and that has a combined capital and surplus of at least US$50,000,000. If such
Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising
or
28
examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01 Satisfaction and Discharge. This Indenture shall upon request of the Company contained in
an Officer’s Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute
instruments acknowledging satisfaction and discharge of this Indenture as reasonably requested by the Company,
when (a) (i) all Notes theretofore authenticated and delivered (other than Notes which have been destroyed, lost or
stolen and which have been replaced, paid or converted as provided in Section 2.06 and have been delivered to the
Trustee for cancellation); or (ii) the Company has deposited with the Trustee or delivered to Holders, as
applicable, after the Notes have become due and payable, whether on the Maturity Date, the Tax Redemption
Date, the Optional Redemption Date, the Repurchase Date, any Fundamental Change Repurchase Date, upon
conversion or otherwise, cash, ADSs or a combination thereof, as applicable, solely to satisfy the Company’s
Conversion Obligation, sufficient, without consideration of reinvestment, to pay all of (or satisfy such Conversion
Obligation in respect of) the outstanding Notes and all other sums due and payable under this Indenture by the
Company; and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.06 shall survive.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Special Interest. The Company covenants and agrees that it will
cause to be paid the principal (including the Redemption Price, the Repurchase Price and the Fundamental Change
Repurchase Price, if applicable) of, and any accrued and unpaid Special Interest on, each of the Notes at the
places, at the respective times and in the manner provided herein and in the Notes.
Section 4.02 Maintenance of Office or Agency. The Company will maintain in the contiguous United
States of America, an office or agency (which will be the Paying Agent Office initially) where the Notes may be
surrendered for registration of transfer or exchange or for presentation for payment or repurchase or for
conversion and where notices in respect of the Notes and this Indenture may be made. The Company will give
prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands may be made at the Paying Agent
Office.
The Company may also from time to time designate as co-Note Registrars one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
29
purposes and may from time to time rescind such designations; provided that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in the contiguous United
States of America for such purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency. The terms “Paying
Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.
The Company initially designates Deutsche Bank Trust Company Americas as the Paying Agent, Note
Registrar and Conversion Agent and the Paying Agent Office shall be considered as one such office or agency of
the Company for each of the aforesaid purposes.
Section 4.03 Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 4.04 Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than
the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i) that it will hold all sums held by it as such agent for the payment of the principal (including
the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable)
of, and any accrued and unpaid Special Interest on, the Notes for the benefit of the Holders of the Notes;
(ii) that it will give the Trustee prompt written notice of any failure by the Company to make
any payment of the principal (including the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price, if applicable) of, and any accrued and unpaid Special Interest on, the Notes
when the same shall be due and payable; and
(iii) that at any time during the continuance of an Event of Default, upon request of the Trustee,
it will forthwith pay to the Trustee all sums so held.
The Company shall, on or before each due date of the principal (including the Redemption Price, the
Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, or any accrued and unpaid
Special Interest on, the Notes, deposit with the Paying Agent a sum in immediately available funds sufficient to
pay such principal (including the Redemption Price, the Repurchase Price and the Fundamental Change
Repurchase Price, if applicable) or any accrued and unpaid Special Interest and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee in writing of any failure to take such action; provided that
such deposit must be received by the Paying Agent by 10:00 a.m., New York City time, on the relevant due date.
(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of the
principal (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price,
if applicable) of, and any accrued and unpaid Special Interest on, the Notes, set aside, segregate and hold in trust
for the benefit of the Holders of the Notes a sum
30
sufficient to pay such principal (including the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price, if applicable) and such accrued and unpaid Special Interest, if any, so becoming due
and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the
Company to make any payment of the principal (including the Redemption Price, the Repurchase Price and the
Fundamental Change Repurchase Price, if applicable) of, or any accrued and unpaid Special Interest on, the Notes
when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for
the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be
paid or deliver to the Trustee all sums or amounts held by the Company in trust or by any Paying Agent as
required by this Section 4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and
upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying
Agent shall be released from all further liability but only with respect to such sums or amounts. Upon the
occurrence of any event specified in Section 6.01(i) or Section 6.01(j), the Trustee or one of its affiliates shall
automatically become the Paying Agent.
(d) Subject to applicable escheatment laws, any money or property deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of principal (including the Redemption Price,
the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and any accrued and
unpaid Special Interest on, or in satisfaction of its Conversion Obligation with respect to, any Note and remaining
unclaimed for two years after such principal (including the Redemption Price, the Repurchase Price and the
Fundamental Change Repurchase Price, if applicable) or Special Interest has become due and payable, or such
Conversion Obligation became due, shall be paid or delivered, as the case may be, to the Company on request of
the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such money or property, and
all liability of the Company as trustee thereof, shall thereupon cease.
Section 4.05 Existence. Subject to Article 11, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
Section 4.06 Rule 144A Information Requirement and Annual Reports. (a) At any time the Company is
not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes, any ADSs
deliverable upon conversion thereof or any Class A Ordinary Shares represented by the ADSs deliverable upon
conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act, promptly provide to the Trustee and shall, upon written request, provide to any Holder,
beneficial owner or prospective purchaser of such Notes or the ADSs deliverable upon conversion of such Notes,
the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the
resale of such Notes or ADSs pursuant to Rule 144A. The Company shall take such further action as any Holder
or beneficial owner of such Notes or such ADSs may reasonably request to the extent from time to time required
to enable such
31
Holder or beneficial owner to sell such Notes or ADSs in accordance with Rule 144A, as such rule may be
amended from time to time.
(b) The Company shall provide to the Trustee within 15 days after the same are required to be filed
with the Commission, copies of any documents or reports that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any applicable grace period
provided by Rule 12b-25 under the Exchange Act). Any such document or report that the Company files with the
Commission via the Commission’s EDGAR system or any successor thereof shall be deemed to be provided to the
Trustee for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system or such
successor, it being understood that the Trustee shall not be responsible for determining whether such filings have
been made. If the Notes become convertible into Reference Property consisting in whole or in part of shares of
Capital Stock of any parent company of the Company pursuant to the terms of this Indenture described under
Section 14.07 and such parent company provides a full and unconditional guarantee of the notes, the U.S.
Securities and Exchange Commission reports of such parent company shall be deemed to satisfy the foregoing
reporting requirements.
(c) Delivery of the reports and documents described in subsection (b) above to the Trustee is for
informational purposes only, and the Trustee’s receipt of such shall not constitute actual or constructive notice or
knowledge of any information contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively
rely on an Officer’s Certificate).
(d) If, at any time during the six-month period beginning on, and including, the date that is six months
after the last date of original issuance of the Notes, the Company fails to timely file any document or report that it
is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after
giving effect to all applicable grace periods thereunder and other than reports on Form 6-K to the extent the
Company continues to satisfy the “current public information” requirement of Rule 144), or the Notes are not
otherwise freely tradable by Holders other than the Company’s Affiliates or Holders that were the Company’s
Affiliates at any time during the three months immediately preceding (as a result of restrictions pursuant to U.S.
securities laws or the terms of this Indenture or the Notes), the Company shall pay Special Interest on the Notes.
Such Special Interest shall accrue on the Notes at the rate of (i) 0.25% per annum of the principal amount of the
Notes outstanding for the first 180 days and (ii) 0.50% per annum of the principal amount of the Notes
outstanding for each day from and inclidng the 181st day, in each case, during such period for which the
Company’s failure to file has occurred and is continuing or the period during which the Notes are not freely
tradable, as the case may be. As used in this Section 4.06(d), documents or reports that the Company is required to
“file” with the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include documents or
reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(e) If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has not been
removed, the Notes are assigned a restricted CUSIP or the Notes are not otherwise freely tradable by Holders
thereof other than, in each case by or with respect to, the
32
Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three months
immediately preceding (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the
Notes) as of the 376th day after the last date of original issuance of the Notes, the Company shall pay Special
Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until the
restrictive legend has been removed from the Notes in accordance with Section 2.05(c), the Notes have been
assigned an unrestricted CUSIP and the Notes are freely tradable by Holders other than the Company’s Affiliates
or Holders that were the Company’s Affiliates at any time during the three months immediately preceding
(without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as of the 376th
day after the last date of original issuance of the Notes.
(f) Special Interest will be payable in arrears on each Special Interest Payment Date as set forth in
Section 2.03.
(g) The Special Interest that is payable in accordance with Section 4.06(d) or Section 4.06(e) shall be
in addition to, and not in lieu of, any Special Interest that may be payable as a result of the Company’s election
pursuant to Section 6.03. In no event shall Special Interest accrue on any day under the terms of this Indenture
(including any Special Interest payable pursuant to Section 4.06(d) and Section 4.06(e) together with any Special
Interest payable pursuant to Section 6.03) at an annual rate in excess of 0.50%, in the aggregate, for any violation
or Default caused by the Company’s failure to be current in respect of its Exchange Act reporting obligations.
(h) If Special Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the
Company shall deliver to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Special
Interest that is payable and (ii) the date on which such Special Interest is payable. Unless and until a Responsible
Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without
inquiry that no such Special Interest is payable. If the Company has paid Special Interest directly to the Persons
entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such
payment.
Section 4.07 Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the
Company or any successor to the Company under or with respect to this Indenture and the Notes, including
payments of principal (including, if applicable, the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price), payments of Special Interest, if any, and payments of cash and/or deliveries of ADSs
(together with payments of cash for any fractional ADS) upon conversion of the Notes, will be made without
withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or within any jurisdiction in which the Company or any
successor to the Company is, for tax purposes, organized or resident or doing business (each, as applicable, a
“Relevant Taxing Jurisdiction”) or through which payment is made or deemed made (together with each
Relevant Taxing Jurisdiction, a “Relevant Jurisdiction”, and in each case, any political subdivision or taxing
authority thereof or therein), unless such withholding or deduction is required by law or by regulation or
governmental policy having the force of law. In the event that any such withholding or deduction is so required,
the Company or any successor to the Company shall pay to each Holder such additional amounts
33
(“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holders after such
withholding or deduction (and after deducting any taxes on the Additional Amounts) will equal the amounts that
would have been received by such Holders had no such withholding or deduction been required; provided that no
Additional Amounts will be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been
imposed but for:
(1) the existence of any present or former connection between the relevant
Holder or beneficial owner of such Note and the Relevant Jurisdiction, other than merely
holding such Note or the receipt of payments of the enforcement of rights thereunder,
including, without limitation, such Holder or beneficial owner being or having been a
national, domiciliary or resident of such Relevant Jurisdiction or treated as a resident
thereof or being or having been physically present or engaged in a trade or business therein
or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required)
more than 30 days after the later of the date on which the payment of the principal of
(including the Redemption Price, the Repurchase Price and the Fundamental Change
Repurchase Price, if applicable) and Special Interest, if any, on such Note or the payment of
cash and/or the delivery of ADSs (together with payment of cash for any fractional ADS)
upon conversion of such Note became due and payable pursuant to the terms thereof or was
made or duly provided for, unless the Holder would have been entitled to such Additional
Amounts on the last day of the 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request
from the Company or any successor of the Company, addressed to the Holder, to the extent
such holder or beneficial owner is legally entitled, to provide certification, information,
documents or other evidence concerning such Holder’s or beneficial owner’s nationality,
residence, identity or connection with the Relevant Jurisdiction, or to make any declaration
or satisfy any other reporting requirement relating to such matters, if and to the extent that
due and timely compliance with such request is required by statute, regulation or
administrative practice of the Relevant Jurisdiction in order to reduce or eliminate any
withholding or deduction as to which Additional Amounts would have otherwise been
payable; or
(4) the presentation of such Note (in cases in which presentation is required) for
payment in the Relevant Jurisdiction, unless such Note could not have been presented for
payment elsewhere;
34
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax,
assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise
than by withholding or deduction from payments or deliveries under or with respect to the Notes;
(D) any tax, assessment, withholding or deduction required by sections 1471 through
1474 of the Code (“FATCA”), any current or future Treasury Regulations or rulings promulgated
thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing
FATCA, any intergovernmental agreement between the United States and any other jurisdiction to
implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement,
or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges
referred to in the preceding clauses (A), (B), (C) or (D); or
(ii) with respect to any payment of the principal of (including the Redemption Price, the
Repurchase Price and Fundamental Change Repurchase Price, if applicable) and Special Interest on such
Note or the payment of cash and/or the delivery of ADSs (together with payment of cash for any fractional
ADS) upon conversion of such Note to a Holder, if the Holder is a fiduciary, partnership or person other
than the sole beneficial owner of that payment to the extent that such payment would be required to be
included in the income under the laws of the Relevant Jurisdiction, for tax purposes, of a beneficiary or
settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner who
would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, member or
beneficial owner been the Holder thereof.
(b) [RESERVED]
(c) Any reference in this Indenture or the Notes in any context to the payment of cash and/or the
delivery of ADSs (together with payments of cash for any fractional ADS), as applicable, upon conversion of any
Note or the payment of principal of (including the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price, if applicable) and any Special Interest on any Note or any other amount payable with
respect to such Note, shall be deemed to include payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable with respect to that amount pursuant to this Section
4.07.
(d) If the Company or its successor is required to make any deductions or withholding from any
payments or deliveries with respect to the Notes, it will deliver to the Trustee, upon written request, official tax
receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted or, if
official receipts are not obtainable, an Officers’ Certificate evidencing the payment of any applicable taxes so
deducted or withheld.
35
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Section 4.08 Stay, Extension and Usury Laws. The Company covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company
from paying all or any portion of the principal of or any Special Interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of
this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
Section 4.09 Compliance Certificate; Statements as to Defaults. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on
December 31, 2019) an Officer’s Certificate stating that the Company has fulfilled its obligations hereunder, and
whether the authorized Officers thereof have knowledge of any Default by the Company that occurred during the
previous year that is then continuing and, if so, specifying each such Default and the nature thereof.
In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event within 30
days after the Company becomes aware of the occurrence of any Default, an Officer’s Certificate setting forth
the details of such Default, its status and the action that the Company is taking or proposing to take in respect
thereof.
Section 4.10 Further Instruments and Acts. Upon request of the Trustee, the Company will execute and
deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
ARTICLE 5
LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Lists of Holders. The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, semi-annually, (i) if and at all such times when Special Interest is payable on the Notes
pursuant to this Indenture not more than 5 days after each March 15 and September 15 in each year beginning (if
Special Interest is then payable as set forth hereunder) with March 15, 2020, and (ii) at such other times as the
Trustee may request in writing, within 5 days after receipt by the Company of any such request (or such lesser
time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it
hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as
of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide
any such notices) prior to the time such information is furnished, except that no such list need be furnished so long
as the Trustee is acting as Note Registrar.
36
Section 5.02 Preservation and Disclosure of Lists. The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent
list furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so
furnished.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. The following events shall be “Events of Default” with respect to the
Notes:
(a) default in payment of any Special Interest on any Note when due and payable and the default
continues for a period of 30 days;
(b) default in payment of principal of any Notes when due and payable on the Maturity Date, upon
Optional Redemption, upon any required repurchase, upon declaration of acceleration or otherwise;
(c) default in the Company’s obligations to satisfy its Conversion Obligation upon exercise of a
Holder’s conversion right and such default is not cured or such conversion is not rescinded within five Business
Days;
(d) default in the Company’s obligations to issue a Fundamental Change Company Notice in
accordance with Section 15.02(c), notice of a Make-Whole Fundamental Change in accordance with Section
14.03(a) or notice of a specified corporate event in accordance with Section 14.01(b)(ii) or 14.01(b)(iii), in each
case, when due and such default continues for a period of five Business Days;
(e) failure by the Company to comply with its obligations under Article 11;
(f) failure by the Company for 60 days after written notice from the Trustee or by the Trustee at the
request of the Holders of at least 25% in aggregate principal amount of the Notes then outstanding has been
received by the Company to comply with any of its other agreements contained in the Notes or this Indenture;
(g) default by the Company or any Significant Subsidiary of the Company in the payment of principal,
interest or premium when due under any other instruments of indebtedness having an aggregate outstanding
principal amount of US$60 million (or its equivalent in any other currency or currencies) or more in the aggregate
of the Company and/or any such Significant Subsidiary of the Company, whether such indebtedness now exists or
shall hereafter be created, which default results (i) in such indebtedness becoming or being declared due and
payable prior to its stated maturity or (ii) from a failure to pay the principal or interest of any such indebtedness
when due and payable at its stated maturity, upon redemption, upon required purchase, upon declaration of
acceleration or otherwise and, in each case, such default continues in effect for more than 30 days after the
expiration of any grace period or extension of time for payment applicable thereto;
37
(h) failure by the Company or any Significant Subsidiary of the Company to pay final judgments
aggregating in excess of US$60 million (or its equivalent in any other currency or currencies) (excluding any
amounts covered by insurance), which final judgments remain unpaid, undischarged or unstayed for a period of
more than 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has
commenced, or (ii) the date on which all rights to appeal have been extinguished;
(i) the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to the Company or any such Significant Subsidiary
or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any such
Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as
they become due; or
(j) an involuntary case or other proceeding shall be commenced against the Company or any
Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such
Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or
such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 30 consecutive days.
Section 6.02 Acceleration; Rescission and Annulment. If one or more Events of Default shall have
occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other
than an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its
Significant Subsidiaries), unless the principal of all of the Notes shall have already become due and payable, the
Trustee by notice in writing to the Company, or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding determined in accordance with Section 8.04, by notice in writing to the Company and to
the Trustee, may, and the Trustee at the request of such Holders accompanied by security, pre-funding and/or
indemnity satisfactory to the Trustee and otherwise subject to the limitations set forth in this Indenture, shall,
declare 100% of the principal of, and any accrued and unpaid Special Interest on all the Notes to be due and
payable immediately, and upon any such declaration the same shall become and shall automatically be
immediately due and payable, notwithstanding anything contained in this Indenture or in the Notes to the contrary.
If an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its
Significant Subsidiaries occurs and is continuing, 100% of the principal of, and accrued and unpaid Special
Interest, if any, on, all Notes shall become and shall automatically be immediately due and payable without any
action on the part of the Trustee. If an Event of Default occurs and is continuing, the Agents and any other agents
of the Company appointed under this Indenture will be required to act on the direction of the Trustee.
38
The immediately preceding paragraph, however, is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the
payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum in immediately available funds sufficient to pay installments of any accrued
and unpaid Special Interest upon all Notes and the principal of any and all Notes that shall have become due
otherwise than by acceleration (with interest on overdue installments of any accrued and unpaid Special Interest
and on such principal at the then-applicable Special Interest rate only and to the extent any Special Interest is
payable at such time and to the extent that payment of such interest is enforceable under applicable law) and
amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission would not conflict with any judgment or
decree of a court of competent jurisdiction, (2) any and all existing Events of Default under this Indenture, other
than the nonpayment of the principal of and accrued and unpaid Special Interest, if any, on Notes that shall have
become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09 and (3) the
Issuer has paid or deposited with the Trustee a sum sufficient to pay all sums paid or advanced by the Trustee
under this Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, then and in every such case (except as provided in the immediately succeeding sentence) the
Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the
Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind
and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall
impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or
rescission and annulment shall extend to or shall affect any Default or Event of Default resulting from (i) the
nonpayment of the principal of, or any accrued and unpaid Special Interest on, any Notes, (ii) a failure to
repurchase any Notes when required or (iii) a failure to pay or deliver, as the case may be, the consideration due
upon conversion of the Notes.
Section 6.03 Special Interest. Notwithstanding anything in this Indenture or in the Notes to the contrary,
to the extent the Company elects, the sole remedy for an Event of Default relating to the Company’s failure to
comply with its obligations as set forth in Section 4.06(b) shall, for the first 360 days after the occurrence of such
an Event of Default (which occurrence will be the 60th day after written notice is provided to the Company
pursuant to Section 6.01(f)), consist exclusively of the right to receive Special Interest on the Notes at a rate equal
to:
(a) 0.25% per annum of the principal amount of the Notes outstanding for each day during the period
beginning on, and including, the date on which such an Event of Default first occurs and ending on the earlier of
(i) the date on which such Event of Default is cured or validly waived and (ii) the 180th day immediately
following, and including, the date on which such Event of Default first occurred; and
(b) if such Event of Default has not been cured or validly waived prior to the 181st day immediately
following, and including, the date on which such Event of Default first occurred, 0.50% per annum of the
principal amount of the Notes outstanding for each day during the period beginning on, and including, the 181st
day immediately following, and including, the
39
date on which such an Event of Default first occurred and ending on the earlier of (i) the date on which such Event
of Default is cured or validly waived and (ii) the 360th day immediately following, and including, the date on
which such Event of Default first occurred.
If the Company so elects, such Special Interest shall be payable as set forth in Section 2.03. On the 361st
day after such Event of Default (if the Event of Default with respect to the Company’s obligations under Section
4.06(b) is not cured or waived prior to such day), the Notes will be subject to acceleration as provided in Section
6.02. In the event the Company does not elect to pay Special Interest following an Event of Default in accordance
with this Section 6.03 or the Company elected to make such payment but does not pay the Special Interest when
due, the Notes shall be subject to acceleration as provided in Section 6.02.
Special Interest payable pursuant to this Section 6.03 shall be in addition to, not in lieu of, any Special
Interest payable pursuant to Section 4.06(d) or Section 4.06(e). In no event shall Special Interest accrue on the
Notes on any day under this Indenture (including any Special Interest payable pursuant to this Section 6.03
together with any Additional Interest payable pursuant to Section 4.06(d) and Section 4.06(e)) at an annual rate
accruing in excess of 0.50%, in the aggregate, for any violation or Default caused by the Company’s failure to be
current in respect of its Exchange Act reporting obligations. In order to elect to pay Special Interest as the sole
remedy during the first 180 days or 360 days after the occurrence of any Event of Default described in the third
preceding paragraph, the Company must notify in writing all Holders of the Notes, the Trustee and the Paying
Agent of such election prior to the beginning of such 180-day period or 360-day period. Upon the Company’s
failure to timely give such written notice, the Notes shall be immediately subject to acceleration as provided in
Section 6.02.
Section 6.04 Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a)
or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of the Notes, (i) the whole amount then due and payable on the Notes for principal and
Special Interest, if any, with no interest accruing on any overdue principal and Special Interest, if any, unless
Special Interest is payable pursuant to this Indenture on the required payment date, in which case such amounts
will accrue interest per annum at the then-applicable rate of Special Interest and to the extent that Special Interest
remains payable pursuant to this Indenture, subject to the enforceability of such interest pursuant to applicable
law, and (ii) in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee
under Section 7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, may at its sole discretion and without further notice institute a
judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment
or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or
any other obligor upon the Notes, wherever situated; provided that the Trustee will not be bound to make any such
proceeding unless (i) it shall have been so directed by the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding, (ii) it shall have been indemnified, pre-funded and/or secured to its satisfaction and
(iii) the Trustee is satisfied that the act or exercise of any of the rights or powers vested in it by this Indenture will
not result in any of its directors, officers, employees or agents incurring personal liability.
40
In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Company or such other obligor, the property of the
Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such
other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise,
to file and prove a claim or claims for the whole amount of principal and accrued and unpaid Special Interest, if
any, and additional interest, if any, pursuant to the immediately preceding paragraph in respect of the Notes, and,
in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such
other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the
Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to
the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as
administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for reasonable compensation, expenses, advances and
disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under
Section 7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such
Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be
enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes.
41
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any
provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the
Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such
proceedings.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09 or any rescission and
annulment pursuant to Section 6.2 or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case the Company, the Holders, and the Trustee shall, subject to any determination in such
proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Holders, and the Trustee shall continue as though no such proceeding had been
instituted.
Section 6.05 Application of Monies Collected by Trustee. Any monies or property collected by the
Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following order, at the date or
dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First, to the payment of all amounts due the Trustee under Section 7.06 and any payments due to the
Paying Agent, the Transfer Agent, the Conversion Agent and the Note Registrar;
Second, in case the principal of the outstanding Notes shall not have become due and be unpaid, to the
payment of any Special Interest on, the Notes in default in the order of the date due of the payments of such
interest, with interest (to the extent that any such interest is payable pursuant to this Indenture and has been
collected by the Trustee) upon such overdue payments at the rate of Special Interest, if any, at such time, such
payments to be made ratably to the Persons entitled thereto;
Third, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise,
and be unpaid to the payment of the whole amount (including, if applicable, the payment of the Redemption Price,
Repurchase Price or Fundamental Change Repurchase Price and any cash due upon conversion) then owing and
unpaid upon the Notes for principal and Special Interest, if any, with interest (to the extent that any such interest is
payable pursuant to this Indenture and has been collected by the Trustee) on the overdue principal and Special
Interest, if any, at the rate of Special Interest, if any, at such time, and in case such monies shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including,
if applicable, the Redemption Price, Repurchase Price or Fundamental Change Repurchase Price and the cash due
upon conversion) and any Special Interest without preference or priority of principal over Special Interest, or of
any Special Interest over principal, or of any installment of Special Interest over any other installment of Special
Interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable,
the Redemption Price, Repurchase Price or Fundamental Change Repurchase Price) and any accrued and unpaid
Special Interest; and
42
Fourth, to the payment of the remainder, if any, to the Company.
Section 6.06 Proceedings by Holders. Except to enforce the right to receive payment of principal
(including, if applicable, the Redemption Price, Repurchase Price or Fundamental Change Repurchase Price) or
any Special Interest when due, or the right to receive payment or delivery of the consideration due upon
conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof, as herein provided;
(b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have
requested the Trustee to pursue the remedy;
(c) such Holders shall have offered to the Trustee such security, pre-funding and/or indemnity
satisfactory to it against any loss, liability or expense to be incurred therein or thereby;
(d) the Trustee does not comply with such written request within 60 days after the later of its receipt of
such written request and the offer of security, pre-funding and/or indemnity; and
(e) no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have
been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes then
outstanding within such 60-day period pursuant to Section 6.09, it being understood and intended, and being
expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee
that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any other Holder (it being further
understood that the Trustee shall not have an affirmative duty to ascertain whether or not any such direction is
unduly prejudicial to any other Holder), or to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and
enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any
Holder to receive payment or delivery, as the case may be, of (x) the principal (including the Redemption Price,
the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid
Special Interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective
due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any
such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be
impaired or affected without the consent of such Holder.
43
Section 6.07 Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law; provided that the Trustee will not be
bound to make any such proceeding unless (i) it shall have been so directed by the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, (ii) it shall have been indemnified, pre-funded and/or
secured to its satisfaction and (iii) the Trustee is satisfied that the act or exercise of any of the rights or powers
vested in it by this Indenture will not result in any of its directors, officers, employees or agents incurring personal
liability.
Section 6.08 Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section
2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to
the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default
shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default
or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy given by this
Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
Section 6.09 Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a
majority of the aggregate principal amount of the Notes at the time outstanding determined in accordance with
Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the
Notes; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. The Trustee may refuse to follow any direction that it determines is unduly
prejudicial to the rights of any other Holder (it being understood that the Trustee shall not have an affirmative duty
to ascertain whether or not any such direction is unduly prejudicial to any other Holder), or if it is not provided
with security, pre-funding and/or indemnity to its satisfaction. In addition, the Trustee will not be required to
expend its own funds under any circumstances. The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding determined in accordance with Section 8.04 may on behalf of the Holders of all of
the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default in the
payment of accrued and unpaid Special Interest, if any, on, or the principal, with respect to the failure to
repurchase any Notes when required (including, if applicable, the Redemption Price, Repurchase Price or
Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions
of Section 6.02, (ii) a failure by the Company to pay or deliver, or cause to be delivered, as the case may be, the
consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof
which under Article 10 cannot be modified or amended without the consent of each Holder of an
44
outstanding Note affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be
restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all
purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.10 Notice of Defaults and Events of Default. If a Default or Event of Default occurs and is
continuing and is notified in writing to a Responsible Officer of the Trustee, the Trustee shall, within 90 days after
the Trustee receives such written notice or obtains such knowledge, send to all Holders (at the Company’s
expense) as the names and addresses of such Holders appear upon the Note Register, notice of all Defaults known
to the Trustee, unless such Defaults shall have been cured or waived before the giving of such notice; provided
that the Trustee shall not be deemed to have knowledge of any occurrence of a Default or an Event of Default
unless a Responsible Officer of the Trustee has received written notice.
Section 6.11 Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note
by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by
law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in
accordance with Section 8.04, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or any accrued and unpaid Special Interest, if any, on any Note (including, but not limited to, the
Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price with respect to the Notes
being repurchased as provided in this Indenture) on or after the due date expressed or provided for in such Note or
to any suit for the enforcement of the right to convert any Note in accordance with the provisions of Article 14.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Duties and Responsibilities of Trustee. In case an Event of Default has occurred that has not
been cured or waived, and if the Trustee has written notice or actual knowledge of such event, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s
own affairs; provided that, subject to this Section 7.01, if an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction
of any of the Holders unless such Holders have offered (and, if requested,
45
provided) to the Trustee indemnity, pre-funding or security satisfactory to it against the losses, costs, expenses and
liabilities that might be incurred by it in compliance with such request or direction.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee has
written notice or actual knowledge of and after the curing or waiving of all Events of Default that may have
occurred:
(i) the duties and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture to the extent of its own gross negligence or
willful misconduct and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of gross negligence on its part, the Trustee and each Agent may conclusively
and without liability rely, and will be protected in acting, or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval,
security, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in
original, email or any other form of electronic communication or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee and each Agent need not
investigate any fact or matter stated in the document, but, in the case of any such certificates or opinions
that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts
stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible
Officer or Officers of the Trustee, unless it shall be proved by a decision of a court of competent jurisdiction that
the Trustee was grossly negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than a majority of the aggregate principal amount
of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture;
(d) whether or not therein provided, every provision of this Indenture relating to the conduct or
affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section;
46
(e) the Trustee shall not be liable in respect of any payment (as to the correctness of amount,
entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying
Agent or any records maintained by any co-Note Registrar with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this
Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively and without liability rely on its
failure to receive such notice as reason to act as if no such event occurred;
(g) in the absence of written investment direction from the Company, all cash received by the Trustee
shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for the selection
of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any
such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity
date or the failure of the party directing such investment to provide timely written investment direction, and the
Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written
investment direction from the Company;
(h) in the event that the Trustee or any of its affiliates is also acting as Note Registrar, Paying Agent,
Conversion Agent, Bid Solicitation Agent or Transfer Agent hereunder, the rights and protections afforded to the
Trustee pursuant to this Article 7 shall also be afforded to such Note Registrar, Paying Agent, Conversion Agent,
Bid Solicitation Agent or Transfer Agent; and
(i) under no circumstances shall the Trustee be liable in its individual capacity for the obligations
evidenced by the Notes.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of
any of its rights or powers.
Section 7.02 Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
(a) any request, direction, order or demand of the Company mentioned herein shall be sufficiently
evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(b) the Trustee may consult with counsel or other professional advisors of its selection and require an
Opinion of Counsel and any written or verbal advice of such counsel or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and
in accordance with such advice or Opinion of Counsel;
(c) the Trustee, in its discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the
47
Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any
kind by reason of such inquiry or investigation;
(d) in connection with the exercise by it of its trusts, powers, authorities or discretions (including,
without limitation, any modification, waiver, authorization or determination), the Trustee shall have regard to the
general interests of the Holders as a class but shall not have regard to any interests arising from circumstances
particular to individual Holders (whatever their number) and in particular, but without limitation, shall not have
regard to the consequences of the exercise of its trusts, powers, authorities or discretions for individual Holders
(whatever their number) resulting from their being for any purpose domiciled or resident in, or otherwise
connected with, or subject to the jurisdiction of, any country, state or territory and a Holder shall not be entitled to
require, nor shall any Holder be entitled to claim, from the Company, the Trustee or any other Person any
indemnification or payment in respect of any tax consequence of any such exercise upon individual Holders
except to the extent already provided in Section 4.07 or Section 14.02(e) and/or any undertaking given in addition
to, or in substitution for, Section 4.07 or Section 14.02(e) pursuant to this Indenture;
(e) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, delegates, custodians, nominees or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent, delegate, representative, custodian,
nominee or attorney appointed by it with due care hereunder;
(f) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(g) the Trustee shall not be required to give any bond or surety in respect of the performance of its
powers and duties hereunder;
(h) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture;
(i) in no event shall the Trustee be liable for any consequential, punitive, special or indirect loss or
damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of action;
(j) neither the Trustee nor any Agent shall be charged with knowledge of any Default or Event of
Default with respect to the Notes, unless a Responsible Officer has received express written notice of such Default
or Event of Default;
(k) the Trustee shall treat information provided hereunder as confidential, but (unless consent is
prohibited by law) the Company hereby consents to the processing, transfer and disclosure by the Trustee of any
information relating to it provided hereunder to and between branches, subsidiaries, representative offices,
affiliates and agents of the Trustee solely in connection with the discharge of the Trustee’s trusts, powers,
authorities, duties and obligations under this Indenture, wherever situated, for confidential use (including to
service providers
48
selected by the Trustee with due care for data processing, statistical and risk analysis purposes and for compliance
with applicable law). The Trustee and any such branch, subsidiary, representative office, affiliate, agent or third
party may transfer and disclose any such information only to the extent required or requested by any applicable
law, regulatory authority, court or legal process, including any auditor of the Company and including any payor or
payee as required by applicable law, and may use (and its performance will be subject to the rules of) any
communications, clearing or payment systems, intermediary bank or other system. The Company acknowledges
that the transfers permitted by this Section 7.02(k) may include transfers to jurisdictions which do not have strict
data protection or data privacy laws;
(l) the Company hereby irrevocably waives, in favor of the Trustee and the Agents, any conflict of
interest that may arise by virtue of the Trustee and/or the Agents acting in various capacities under the Notes or
this Indenture or for other customers of the Trustee and the Agents. The Company acknowledges that the Trustee
and the Agents and their respective affiliates (together, the “Agent Parties”) may have interests in, or may be
providing or may in the future provide financial or other services to other parties with interests which the
Company may regard as conflicting with its interests and may possess information (whether or not material to the
Company) other than as a result of the Trustee and/or the Agents acting as the Trustee and/or the Agents
hereunder, that the Trustee and/or the Agents may not be entitled to share with the Company. The Trustee and the
Agents will not disclose confidential information obtained from the Company (without its consent) to any of the
Trustee and/or the Agents’ other customers or affiliates nor will it use on behalf of the Company any confidential
information obtained from any other customer. Without prejudice to the foregoing, the Company agrees that the
Agent Parties may deal (whether for its own or its customers’ account) in, or advise on, securities of any party and
that such dealing or giving of advice, will not constitute a conflict of interest for the purposes of the Notes or this
Indenture;
(m) the Trustee shall be entitled to take any action or to refuse to take any action which the Trustee
regards as necessary for the Trustee to comply with any applicable law, regulation or fiscal requirement, court
order, or the rules, operating procedures or market practice of any relevant stock exchange or other market or
clearing system;
(n) notwithstanding anything else contained in this Indenture, each of the Trustee and the Agents may
refrain without liability from (i) doing anything which would or might in its opinion acting reasonably be illegal
or contrary to, or would result in the Trustee or any Agent being in breach of, any law of any jurisdiction or any
directive, rule, regulation, request, direction, notice, announcement or similar action of any agency, regulatory
authority, stock exchange or self-regulatory organization of any jurisdiction (including, without limitation, Section
619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act), or which would or might otherwise
render it liable to any person and may do anything which is, in its opinion, necessary to comply with any such law,
directive or regulation or (ii) doing anything which may cause the Trustee to be considered a sponsor of a covered
fund under Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any regulations
promulgated thereunder. Furthermore, the Trustee may also refrain from taking any action if, in its opinion based
upon advice of counsel, it would not have the power to do the relevant thing in the relevant jurisdiction by virtue
of any applicable law in such jurisdiction or if it is determined
49
by any court or other competent authority in such jurisdiction that it does not have such power; and
(o) in the event the Trustee receives inconsistent or conflicting requests and indemnity, security and/or
pre-funding from two or more groups of Holders, each representing less than a majority in aggregate principal
amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee, in its sole and
absolute discretion, may determine what action, if any, will be taken.
Section 7.03 No Responsibility for Recitals, Etc. The recitals, statements, warranties and representations
contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the accuracy or correctness of the same or the execution, legality, effectiveness,
adequacy, genuineness, validity, enforceability or admissibility in evidence of this Indenture or of the Notes. The
Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any
Notes authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.
Notwithstanding the generality of the foregoing, each Holder shall be solely responsible for making its own
independent appraisal of, and investigation into, the financial condition, creditworthiness, condition, affairs, status
and nature of the Company, and the Trustee shall not at any time have any responsibility for the same and each
Holder shall not rely on the Trustee in respect thereof.
Section 7.04 Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May
Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation Agent (if other than the
Company or any Affiliate thereof) or Note Registrar, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion
Agent, Bid Solicitation Agent or Note Registrar, and nothing herein shall obligate any of them to account for any
profits earned from any business or transactional relationship.
Section 7.05 Monies and ADSs to Be Held in Trust. All monies and ADSs received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for which they were received. Money
and ADSs held by the Trustee in trust or by the Paying Agent hereunder need not be segregated from other funds
or property except to the extent required by law. Neither the Trustee nor the Paying Agent shall be under any
liability for interest on any money or ADSs received by it hereunder.
Section 7.06 Compensation and Expenses of Trustee. (a) The Company covenants and agrees to pay to
the Trustee, in any capacity under this Indenture, from time to time, and the Trustee shall be entitled to,
compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing
between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all
documented expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance
with any of the provisions of this Indenture in any capacity thereunder (including the documented compensation
and the expenses and disbursements of its agents and counsel and
50
of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been
caused by its gross negligence or willful misconduct as determined by a final, non- appealable decision of a court
of competent jurisdiction. The Company also covenants to indemnify the Trustee in any capacity under this
Indenture and any other document or transaction entered into in connection herewith and its officers, directors,
attorneys, employees and agents, and to hold them harmless against, any loss, claim (provided that the Company
need not pay for settlement of any such claim made without its consent, which consent shall not be unreasonably
withheld), damage, liability or expense incurred without gross negligence or willful misconduct on the part of the
Trustee, its officers, directors, agents, attorneys or employees, as the case may be, as determined by a final, non-
appealable decision of a court of competent jurisdiction, and arising out of or in connection with the acceptance or
administration of this Indenture or in any other capacity hereunder, including the costs and expenses of defending
themselves against any claim of liability in the premises. The obligations of the Company under this Section 7.06
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall be secured by a senior lien to which the Notes are hereby made subordinate on all money or
property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust herewith
for the benefit of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts due
under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company. The
indemnity under this Section 7.06(a) is payable upon demand by the Trustee. The obligation of the Company
under this Section 7.06(a) shall survive the satisfaction and discharge of the Indenture and payment of the Notes,
the termination of this Indenture and the resignation or removal of the Trustee. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification
provided in this Section 7.06(a) shall extend to the officers, directors, attorneys, agents and employees of the
Trustee. Subject to Section 7.02(e), any negligence or misconduct of any agent, delegate, attorney or
representative, in each case, of the Trustee, shall not affect indemnification of the Trustee.
Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and
its agents incur expenses or render services after an Event of Default specified in Section 6.01(i) or Section 6.01(j)
occurs, the expenses and the compensation for the services are intended to constitute expenses of administration
under any bankruptcy, insolvency or similar laws. If a Default or Event of Default shall have occurred or if the
Trustee finds it expedient or necessary or is requested by the Company and/or the Holders to undertake duties
which are of an exceptional nature or otherwise outside the scope of the Trustee’s normal duties under this
Indenture, the Company will pay such additional remuneration as the Company and the Trustee have separately
agreed in writing.
(b) The Paying Agent, the Transfer Agent, the Conversion Agent and the Note Registrar shall be
entitled to the compensation to be agreed upon in writing with the Company for all services rendered by it under
this Indenture, and the Company agrees promptly to pay such compensation and to reimburse the Paying Agent,
the Transfer Agent, the Conversion Agent and the Note Registrar for its out-of-pocket expenses (including
reasonable fees and expenses of counsel) incurred by it in connection with the services rendered by it under this
Indenture. The Company hereby agrees to indemnify the Paying Agent, the Transfer Agent, the Conversion Agent
and the Note Registrar and their respective officers, directors, agents and
51
employees and any successors thereto for, and to hold it harmless against, any loss, liability or expense (including
reasonable fees and expenses of counsel) incurred without gross negligence or willful misconduct on its part, as
determined by a final, non-appealable decision of a court of competent jurisdiction, arising out of or in connection
with its acting as the Paying Agent, the Transfer Agent, the Conversion Agent and the Note Registrar hereunder.
The obligations of the Company under this paragraph (b) shall survive the payment of the Notes, the termination
of the Indenture and the resignation or removal of the Paying Agent, the Transfer Agent, the Conversion Agent
and the Note Registrar.
Section 7.07 Officer’s Certificate as Evidence. Except as otherwise provided in Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and
established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate shall be full warrant
to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of
at least US$50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 7.09 Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving 30
days’ written notice of such resignation to the Company. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 days after
the mailing of such notice of resignation to the Company, the resigning Trustee may appoint a successor trustee on
behalf of and at the expense of the Company or it may, upon ten Business Days’ notice to the Company and the
Holders and at the expense of the Company, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months may,
subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and
shall fail to resign after written request therefor by the Company or by any such Holder, or
52
(ii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in either case, the Company may by a Board Resolution remove the Trustee and appoint
a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note
or Notes for at least six months may, on behalf of himself or herself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as
determined in accordance with Section 8.04, may remove the Trustee by giving 30 days written notice to the
Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten
days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so
removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided, may petition
any court of competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any
of the provisions of this Section 7.09 shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 7.10.
Section 7.10 Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section
7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due to it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so
ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act shall, nevertheless, retain a senior lien to which the Notes are hereby made subordinate
on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of
Holders of particular Notes, to secure any amounts then due to it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such
acceptance such successor trustee shall be eligible under the provisions of Section 7.08.
53
Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the
Company and the successor trustee, at the written direction and at the expense of the Company shall deliver or
cause to be delivered notice of the succession of such trustee hereunder to the Holders at their addresses as they
shall appear on the Note Register. If the Company fails to deliver such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such notice to be delivered at the expense
of the Company.
Section 7.11 Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity
succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of
this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity
succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity
shall be eligible under the provisions of Section 7.08.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of
the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that
time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes
either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that
the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 7.12 Trustee’s Application for Instructions from the Company. Any application by the Trustee for
written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be
taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and
the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall not be less than three Business Days
after the date any Officer that the Company been deemed to have been given pursuant to Section 17.03, unless any
such Officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the
effective date in the case of any omission), the Trustee shall have received written instructions in accordance with
this Indenture in response to such application specifying the action to be taken or omitted.
54
ARTICLE 8
CONCERNING THE HOLDERS
Section 8.01 Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified
percentage of the aggregate principal amount of the Notes may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced
(a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or
proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders
duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders. Whenever the Company or the Trustee solicits the
taking of any action by the Holders of the Notes, the Company or the Trustee may fix, but shall not be required to,
in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The
record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation
of such action.
Section 8.02 Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and
Section 9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate
of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03 Who Are Deemed Absolute Owners. The Company, the Trustee, any Paying Agent, any
Transfer Agent, any Conversion Agent and any Note Registrar may deem the Person in whose name a Note shall
be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not
such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any
Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of
the principal of and (subject to Section 2.03) any accrued and unpaid Special Interest on such Note, for the
purpose of conversion of such Note and for all other purposes under this Indenture; and none of the Company, the
Trustee, any Transfer Agent, any Paying Agent, any Conversion Agent or any Note Registrar shall be affected by
any notice to the contrary. The sole registered holder of a Global Note shall be the Depositary or its nominee. All
such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the
extent of the sums or ADSs so paid or delivered, effectual to satisfy and discharge the liability for monies payable
or ADSs deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes
following an Event of Default, any owner of a beneficial interest in a Global Note may directly enforce against the
Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other
Person, such owner’s right to exchange such beneficial interest for a Note in certificated form in accordance with
the provisions of this Indenture.
Section 8.04 Company-Owned Notes Disregarded. In determining whether the Holders of the requisite
aggregate principal amount of Notes have concurred in any direction, consent,
55
waiver or other action under this Indenture, Notes that are owned by the Company, by any Subsidiary thereof or
by any Affiliate of the Company or any Subsidiary thereof shall be disregarded and deemed not to be outstanding
for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall
be protected in relying on any such direction, consent, waiver or other action only Notes in respect of which a
Responsible Officer is notified in writing shall be so disregarded. Notes so owned that have been pledged in good
faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish its right to
so act with respect to such Notes and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of
the Company or a Subsidiary thereof. Within five days of acquisition of the Notes by any of the above described
persons or entities, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and
identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above
described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as
conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for
the purpose of any such determination.
Section 8.05 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage
of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any
Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding
as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action
taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of
transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued
in exchange or substitution therefor or upon registration of transfer thereof.
ARTICLE 9
HOLDERS’ MEETINGS
Section 9.01 Purpose of Meetings. A meeting of Holders may be called at any time and from time to
time pursuant to the provisions of this Article 9 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give any directions to the Trustee
permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of
Article 6;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the
provisions of Article 10; or
56
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified
aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law.
Section 9.02 Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take
any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine.
Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01,
shall be delivered to Holders of such Notes at their addresses as they shall appear on the Note Register. Such
notice shall also be delivered to the Company. Such notices shall be delivered not less than 20 nor more than 90
days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are
present in person or by proxy or if notice is waived before or after the meeting by the Holders of all Notes then
outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have,
before or after the meeting, waived notice.
Section 9.03 Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding,
shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of such meeting
within 20 days after receipt of such request, then the Company or such Holders may determine the time and the
place for such meeting and may call such meeting to take any action authorized in Section 9.01, by delivering
notice thereof as provided in Section 9.02.
Section 9.04 Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a)
be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting.
The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 9.05 Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding
of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders as provided in Section 9.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent
57
secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal amount of the
Notes represented at the meeting and entitled to vote at the meeting.
Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be
entitled to one vote for each US$1,000 principal amount of Notes held or represented by him or her; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to
vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy
to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02
or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal
amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
Minutes shall be made of all resolutions and proceedings at every meeting and, if purporting to be signed
by the chairman of that meeting or of the next succeeding meeting of Holders of the Notes, shall be conclusive
evidence of the matters in them. Until the contrary is proved every meeting for which minutes have been so
made and signed shall be deemed to have been duly convened and held and all resolutions passed or proceedings
transacted at it to have been duly passed and transacted.
Section 9.06 Voting. The vote upon any resolution submitted to any meeting of Holders shall be by
written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and
the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that said notice was delivered as provided
in Section 9.02. The record shall show the aggregate principal amount of the Notes voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 9.07 No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the
Notes.
58
ARTICLE 10
SUPPLEMENTAL INDENTURES
Section 10.01 Supplemental Indentures Without Consent of Holders. The Company, when authorized by
the resolutions of the Board of Directors, and the Trustee, at the Company’s expense and direction, may from time
to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for the assumption by a Successor Company of the obligations of the Company under
this Indenture pursuant to Article 11;
(c) to add guarantees with respect to the Notes;
(d) to secure the Notes;
(e) to add to the covenants or Events of Default of the Company for the benefit of the Holders or
surrender any right or power conferred upon the Company under this Indenture or the Notes;
(f) upon the occurrence of any transaction or event described in Section 14.07(a), to (i) provide that
the Notes are convertible into Reference Property, subject to Section 14.03, and (ii) effect the related changes to
the terms of the Notes described under Section 14.07(a), in each case, in accordance with Section 14.07;
(g) to make any change that does not adversely affect the rights or interests of any Holder in any
material respect; or
(h) to conform the provisions of this Indenture or the Notes to the “Description of the Notes” section
of the Offering Memorandum, as certified by the Company in an Officer’s Certificate.
Upon the written request of the Company, the Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the
Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 10.02.
Section 10.02 Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided
in Article 8) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding
(determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a
repurchase of, or tender or exchange offer for, Notes), the Company, when authorized by the resolutions of the
Board of
59
Directors, and the Trustee, at the Company’s expense, may from time to time and at any time enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying in
any manner the rights of the Holders; provided, however, that, without the consent of each Holder of an
outstanding Note affected, no such supplemental indenture shall:
(a) reduce the amount of Notes whose Holders must consent to an amendment or waiver;
(b) reduce the rate of or extend the stated time for payment of any Special Interest on any Note;
(c) reduce the principal of or extend the Maturity Date of any Note;
(d) make any change that adversely affects the conversion rights of any Notes;
(e) reduce the Redemption Price, the Repurchase Price or the Fundamental Change Repurchase Price
of any Note or amend or modify in any manner adverse to the Holders the Company’s obligation to make such
payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
(f) make any Note payable in a currency other than U.S. dollars;
(g) change the ranking of the Notes;
(h) impair the right of any Holder to receive payment of principal and any Special Interest on such
Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with
respect to such Holder’s Note;
(i) change the Company’s obligation to pay Additional Amounts on any Note; or
(j) make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions
in Section 6.02 or Section 6.09.
Upon the written request of the Company, and upon the filing with the Trustee of evidence of the consent
of the requisite Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the Company in the
execution of such supplemental indenture unless (i) the Trustee has not received an Opinion of Counsel stating
that such supplemental indenture is authorized and permitted by the terms of this Indenture and not contrary to
law or (ii) such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental
indenture. It shall be sufficient if such Holders approve the substance thereof. After any supplemental indenture
becomes effective under Section 10.1 or Section 10.02, the Company shall send to the Holders (with a copy to the
Trustee) a notice briefly
60
describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect
in the notice, will not impair or affect the validity of the supplemental indenture.
Section 10.03 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
Section 10.04 Notation on Notes. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s expense, bear a
notation as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and
executed by the Company, authenticated upon receipt of a Company Order, by the Trustee and delivered in
exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
Section 10.05 Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In addition to
the documents required by Section 17.06, the Trustee shall receive an Officer’s Certificate and an Opinion of
Counsel stating that and as conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article 10 and is permitted or authorized by this Indenture and with respect
to such Opinion of Counsel, that such supplemental indenture is the valid and binding obligation of the Company
enforceable in accordance with its terms, subject to customary exceptions and qualifications.
ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.01 Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section
11.02, the Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or
substantially all of the consolidated assets of the Company and its Subsidiaries and consolidated affiliated entities,
taken as a whole, to another Person, unless:
(a) the resulting, surviving or transferee Person (the “Successor Company”), if not the Company,
shall be a corporation organized and existing under the laws of the United States of America, any State thereof,
the District of Columbia, the Cayman Islands, the British Virgin Islands, Bermuda or Hong Kong and the
Successor Company (if not the Company) shall expressly assume, by supplemental indenture all of the obligations
of the Company under the Notes and this Indenture (including, for the avoidance of doubt, the obligation to pay
Additional Amounts pursuant to Section 4.07);
61
(b) immediately after giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing under this Indenture; and
(c) The Company or the Successor Company will have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, and if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with the requirements of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been satisfied and that this Indenture and
the Notes constitute legal, valid and binding obligations of the continuing Person, enforceable in accordance with
their terms.
For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company to another Person, which properties and assets,
if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all
or substantially all of the properties and assets of the Company to another Person.
Section 11.02 Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale,
conveyance, transfer or lease and upon the assumption by the Successor Company, by supplemental indenture,
executed and delivered to the Trustee of the due and punctual payment of the principal of and any accrued and
unpaid Special Interest on all of the Notes (including, for the avoidance of doubt, any Additional Amounts), the
due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes
(including, for the avoidance of doubt, any Additional Amounts) and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if not
the Company) shall succeed to and, except in the case of a lease of all or substantially all of the Company’s
properties and assets, shall be substituted for the Company, with the same effect as if it had been named herein as
the party of the first part. Such Successor Company thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company
instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously
shall have been signed and delivered by the Officers of the Company to the Trustee for authentication, and any
Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as
the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such
Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale,
conveyance or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as
the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in
the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and,
except in the case of a lease, such Person shall be released
62
from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.
In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology
and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
Section 11.03 Opinion of Counsel to Be Given to Trustee. No consolidation, merger, sale, conveyance,
transfer or lease shall be effective unless the Trustee shall receive an Officer’s Certificate and an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or lease and any
such assumption and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture, complies with the provisions of this Article 11.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the
principal of or any accrued and unpaid Special Interest on any Note, nor for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this
Indenture or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or
Subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Notes.
ARTICLE 13
INTENTIONALLY OMITTED
ARTICLE 14
CONVERSION OF NOTES
Section 14.01 Conversion Privilege.
(a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall
have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is US$1,000
principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions
described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately
preceding April 1, 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii)
regardless of the conditions described in Section 14.01(b), on or after April 1, 2024 and prior to the close of
business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an
initial conversion rate of 23.4680 ADSs (subject to adjustment as provided in
63
this Article 14, the “Conversion Rate”) per US$1,000 principal amount of Notes (subject to, and in accordance
with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(b) (i) Prior to the close of business on the Business Day immediately preceding April 1, 2024, a
Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day
period immediately after any ten consecutive Trading Day period (the “Measurement Period”) in which the
Trading Price per US$1,000 principal amount of Notes, as determined following a request by a Holder of Notes in
accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the
product of the Last Reported Sale Price of the ADSs on each such Trading Day and the Conversion Rate on each
such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this
subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written
notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized
securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate
contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to
determine the Trading Price per US$1,000 principal amount of Notes unless the Company has requested such
determination in writing, and the Company shall have no obligation to make such request (or, if the Company is
acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per
US$1,000 principal amount of Notes) unless a Holder provides the Company with reasonable evidence that the
Trading Price per US$1,000 principal amount of Notes on any Trading Day would be less than 98% of the product
of the Last Reported Sale Price of the ADSs on such Trading Day and the Conversion Rate on such Trading Day,
at which time the Company shall instruct the Bid Solicitation Agent (if other than the Company) in writing to
determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price
per US$1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day
until the Trading Price per US$1,000 principal amount of Notes is greater than or equal to 98% of the product of
the Last Reported Sale Price of the ADSs and the Conversion Rate. At such time as the Company directs the Bid
Solicitation Agent in writing to solicit bid quotations, the Company will provide the Bid Solicitation Agent with
the names and contact details of the three independent nationally recognized securities dealers the Company
selects, and the Company will direct those securities dealers to provide bids to the Bid Solicitation Agent. If (x)
the Company is not acting as Bid Solicitation Agent, and the Company does not, when the Company is required
to, instruct the Bid Solicitation Agent to determine the Trading Price per US$1,000 principal amount of Notes
when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent in
writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is
acting as Bid Solicitation Agent and the Company fails to make such determination when obligated as provided in
the preceding sentence, then, in either case, the Trading Price per US$1,000 principal amount of Notes shall be
deemed to be less than 98% of the product of the Last Reported Sale Price of the ADSs and the Conversion Rate
on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company
shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing. If, at any
time after the Trading Price condition set forth above has been met, the Trading Price per US$1,000 principal
amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the ADSs and
the Conversion Rate for such date, the
64
Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee).
(ii) If, prior to the close of business on the Business Day immediately preceding April 1, 2024,
the Company elects to:
(A) issue to all or substantially all holders of the Class A Ordinary Shares (directly or in
the form of ADSs) any rights, options or warrants entitling them, for a period of not more than 45
calendar days after the announcement date of such issuance, to subscribe for or purchase Class A
Ordinary Shares (directly or in the form of ADSs) at a price per share that is less than the average
of the Last Reported Sale Prices of the ADSs, divided by the number of Class A Ordinary Shares
then represented by one ADS, for the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the date of announcement of such issuance; or
(B) distribute to all or substantially all holders of the Class A Ordinary Shares (directly
or in the form of ADSs) the Company’s assets, securities or rights to purchase securities of the
Company, which distribution has a per share value, as determined by the Board of Directors,
exceeding 10% of (i) the Last Reported Sale Price of the ADSs on the Trading Day preceding the
date of announcement for such distribution, divided by (ii) the number of Class A Ordinary Shares
then represented by one ADS, then, in either case, the Company shall notify all Holders of the
Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 43
Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. Once the
Company has given such notice, a Holder may surrender all or any portion of its Notes for
conversion at any time until the earlier of (1) the close of business on the Business Day
immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the
Company’s announcement that such issuance or distribution will not take place, in each case, even
if the Notes are not otherwise convertible at such time.
(iii) If (1) a transaction or event that constitutes a Fundamental Change or a Make-Whole
Fundamental Change occurs prior to the close of business on the Business Day immediately preceding
April 1, 2024, regardless of whether a Holder has the right to require the Company to repurchase the Notes
pursuant to Section 15.02, or (2) if the Company is a party to a consolidation, merger, binding share
exchange, or transfer or lease of all or substantially all of its assets that occurs prior to the close of
business on the Business Day immediately preceding April 1, 2024, in each case, pursuant to which the
ADSs would be converted into cash, securities or other assets, all or any portion of a Holder’s Notes may
be surrendered for conversion at any time from or after the actual effective date of such transaction until
35 Trading Days after the actual effective date of such transaction or, if such transaction also constitutes a
Fundamental Change, until the related Fundamental Change Repurchase Date. The Company shall notify
Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing as promptly as
practicable following the date the Company publicly announces such transaction.
65
(iv) Prior to the close of business on the Business Day immediately preceding April 1, 2024, a
Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter
commencing after the calendar quarter ending on December 31, 2019 (and only during such calendar
quarter), if the Last Reported Sale Price of the ADSs for at least 20 Trading Days (whether or not
consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading
Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion
Price on each applicable Trading Day. The Company shall determine at the beginning of each calendar
quarter commencing after December 31, 2019 whether the Notes may be surrendered for conversion in
accordance with this clause (iv) and shall notify the Holders, the Trustee and the Conversion Agent (if
other than the Trustee) in writing if the Notes become convertible in accordance with this clause (iv).
(v) If the Company calls any or all of the Notes for redemption pursuant to Article 16, then a
Holder may surrender any or all of its Notes for conversion at any time prior to the close of business on the
second Business Day prior to the Tax Redemption Date or Optional Redemption Date, even if the Notes
are not otherwise convertible at such time. After that time, the right to convert such Notes on account of
the Company’s delivery of the notice of redemption shall expire, unless the Company defaults in the
payment of the Redemption Price, in which case a Holder may convert any or all of its Notes until the
Redemption Price has been paid or duly provided for.
Section 14.02 Conversion Procedure; Settlement Upon Conversion.
(a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note,
the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each US$1,000
principal amount of Notes being converted, cash (“Cash Settlement”), ADSs, together with cash, if applicable, in
lieu of delivering any fractional ADSs in accordance with subsection (j) of this Section 14.02 (“Physical
Settlement”) or a combination of cash and ADSs, together with cash, if applicable, in lieu of delivering any
fractional ADS in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its
election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs after the Company’s
issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second
Business Day prior to the related Tax Redemption Date or Optional Redemption Date, and all conversions
for which the relevant Conversion Date occurs on or after April 1, 2024 shall be settled using the same
Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs after the
Company’s issuance of a Redemption Notice with respect to the Notes but prior to the close of business on
the second Business Day prior to the related Tax Redemption Date or Optional Redemption Date, and any
conversions for which the relevant Conversion Date occurs on or after April 1, 2024, the Company shall
use the same Settlement Method for all conversions with the same Conversion Date, but the Company
shall not have any obligation to use the same Settlement Method with respect to conversions with different
Conversion Dates.
66
(iii) If, in respect of any Conversion Date (or the period described in the third immediately
succeeding set of parentheses, as the case may be), the Company elects a Settlement Method, the
Company shall deliver a written notice (the “Settlement Notice”) of the relevant Settlement Method in
respect of such Conversion Date (or such period, as the case may be) to converting Holders, the Trustee
and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day
immediately following the relevant Conversion Date (or, in the case of any conversions for which the
relevant Conversion Date occurs after the date of issuance of a Redemption Notice with respect to the
Notes and prior to the close of business on the second Business Day prior to the related Tax Redemption
Date or Optional Redemption Date, as applicable, in such Redemption Notice or on or after April 1, 2024,
no later than April 1, 2024). If the Company does not elect a Settlement Method prior to the deadline set
forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash
Settlement or Physical Settlement and the Company shall be deemed to have elected Combination
Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per US$1,000
principal amount of Notes shall be equal to US$1,000. Such Settlement Notice shall specify the relevant
Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement
Notice shall indicate the Specified Dollar Amount per US$1,000 principal amount of Notes. If the
Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion
Obligation but does not indicate a Specified Dollar Amount per US$1,000 principal amount of Notes in
such Settlement Notice, the Specified Dollar Amount per US$1,000 principal amount of Notes shall be
deemed to be US$1,000.
(iv) The cash, ADSs or a combination of cash and ADSs, as applicable, in respect of any
conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect
of each US$1,000 principal amount of Notes being converted a number of ADSs equal to the
Conversion Rate in effect on the Conversion Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each
US$1,000 principal amount of Notes being converted cash in an amount equal to the sum of the
Daily Conversion Values for each of the 40 consecutive Trading Days during the related
Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion
Obligation in respect of such conversion by Combination Settlement, the Company shall pay or
deliver, as the case may be, in respect of each US$1,000 principal amount of Notes being
converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the
40 consecutive Trading Days during the related Observation Period.
67
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day of the Observation
Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion
Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional ADS, the
Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in writing of the
Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash
payable in lieu of delivering fractional ADSs. The Trustee and the Conversion Agent (if other than the
Trustee) shall have no responsibility for any such determination.
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set
forth above, such Holder shall (i) in the case of a Global Note, (1) comply with the procedures of the Depositary
in effect at that time and the procedures agreed between the Company and the Depositary with respect to any
ADSs issued upon conversion of the Notes, (2) if required, pay funds equal to any Special Interest payable on the
next Special Interest Payment Date as set forth in Section 14.02(h), and (3) pay any taxes or duties for which a
Holder is responsible as described above and (ii) in the case of a Physical Note (1) complete, manually sign and
deliver a duly completed irrevocable notice to the Conversion Agent as set forth in the Form of Notice of
Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office
of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name
or names (with addresses) in which such Holder wishes the certificate or certificates for any ADSs to be delivered
upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the
Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the
Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required,
pay funds equal to Special Interest payable on the next Special Interest Payment Date as set forth in Section
14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion
pursuant to this Article 14 on the Conversion Date, or promptly following instructions for such conversion. No
Notice of Conversion with respect to any Notes may be delivered, and no Notes may be surrendered for
conversion, by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice or
Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental
Change Repurchase Notice or Repurchase Notice, as the case may be, in accordance with Section 15.03.
If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion
Obligation with respect to such Notes shall be computed on the basis of the aggregate principal amount of the
Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the
date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b)
above and any other procedures for conversion set forth in this Indenture. Except as set forth in Section 14.03(b)
and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the
Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the
Company elects Physical Settlement, or on the second Business Day immediately following the
68
last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any ADSs are
due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to such
Holder, or such Holder’s nominee or nominees, the full number of ADSs to which such Holder shall be entitled, in
book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any certificated Note shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so
surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but,
if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or
similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection
therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from
the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp, issue,
transfer or similar tax due on the delivery of any ADSs upon conversion of the Notes (or the issuance of the
underlying Class A Ordinary Shares), unless the tax is due because the Holder requests such ADSs (or the Class A
Ordinary Shares) to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax.
The Company shall also pay and/or indemnify each Holder and beneficial owners of the Notes and/or ADSs
issuable upon conversion of the Notes for applicable fees and expenses payable to, or withheld by, the Depositary
of the ADSs (including, for the avoidance of doubt, by means of a reduction in any amount or property payable or
deliverable in respect of any ADSs or in the value of deposited amounts or property represented by any ADSs) for
the issuance of all ADSs deliverable upon conversion (including, with respect to any ADSs subject to restricted
CUSIP and/or restrictive legends upon issuance, any of the foregoing with respect to the removal of any such
restriction from such ADSs).
(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any ADSs
issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the ADS Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount
represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through
any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid
Special Interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation
shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid
Special Interest, if any, on the note to, but not including, the relevant Conversion Date. As a result, accrued and
unpaid Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in
full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash
69
and ADSs, accrued and unpaid Special Interest, if any, will be deemed to be paid first out of the cash paid upon
such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Special
Interest Record Date and prior to the open of business on the corresponding Special Interest Payment Date,
Holders of such Notes as of the close of business on such Special Interest Record Date will receive the full
amount of Special Interest, if any, payable on such Notes on the corresponding Special Interest Payment Date
notwithstanding the conversion. However, Notes surrendered for conversion during the period from the close of
business on any Special Interest Record Date to the open of business on the immediately following Special
Interest Payment Date must be accompanied by an amount in U.S. dollars equal to the amount of Special Interest
payable on the Notes so converted, if any (regardless of whether the converting Holder was the holder of record
on the corresponding Special Interest Record Date); provided that no such payment shall be required (1) for
conversions following the Special Interest Record Date immediately preceding the Maturity Date; (2) if the
Company has specified a Tax Redemption Date or an Optional Redemption Date that is after a Special Interest
Record Date and on or prior to the second Business Day immediately succeeding the corresponding Special
Interest Payment Date (or, if such Special Interest Payment Date is not a Business Day, the third Business Day
immediately succeeding such Special Interest Payment Date); (3) if the Company has specified a Fundamental
Change Repurchase Date that is after a Special Interest Record Date and on or prior to the Business Day
immediately succeeding the corresponding Special Interest Payment Date (or, if such Special Interest Payment
Date is not a Business Day, the second Business Day immediately succeeding such Special Interest Payment
Date); or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion
with respect to such Note. Neither the Trustee nor the Conversion Agent (if other than the Trustee) will have any
duty to determine or verify determination by the Company of whether any of the conditions to conversion have
been satisfied.
(i) The Person in whose name any ADSs shall be issuable upon conversion shall be treated as a
stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy
the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation
Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the
case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for
conversion.
(j) The Company shall not issue any fractional ADSs upon conversion of the Notes and shall instead
pay cash in lieu of delivering any fractional ADS issuable upon conversion based on the Daily VWAP for the
relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading
Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for
conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of
ADSs that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily
Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such
computation shall be paid in cash.
Section 14.03 Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with
Make- Whole Fundamental Changes. (a) If a Make-Whole Fundamental Change occurs prior to the Maturity
Date and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change, the
Company shall, under the circumstances
70
described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of
additional ADSs (the “Additional ADSs”), as described below. A conversion of Notes shall be deemed for these
purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion
is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental
Change up to, and including, the second Business Day immediately prior to the related Fundamental Change
Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental
Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the
Effective Date of such Make-Whole Fundamental Change). The Company shall provide written notification to
Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-
Whole Fundamental Change and issue a press release announcing such Effective Date no later than five Business
Days after such Effective Date.
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change,
the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash
Settlement or Combination Settlement in accordance with Section 14.02; provided, however, that if, at the
effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental
Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash,
for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the
Conversion Obligation shall be calculated based solely on the ADS Price for the transaction and shall be deemed
to be an amount of cash per US$1,000 principal amount of converted Notes equal to the Conversion Rate
(including any adjustment for Additional ADSs), multiplied by such ADS Price.
(c) The number of Additional ADSs, if any, by which the Conversion Rate shall be increased shall be
determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change
occurs or becomes effective (the “Effective Date”) and the price (the “ADS Price”) paid (or deemed to be paid)
per ADS in the Make-Whole Fundamental Change. If the holders of the ADSs receive in exchange for their ADSs
only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental
Change, the ADS Price shall be the cash amount paid per ADS. Otherwise, the ADS Price shall be the average of
the Last Reported Sale Prices of the ADSs over the five Trading Day period ending on, and including, the Trading
Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.
(d) The ADS Prices set forth in the column headings of the table below shall be adjusted as of any
date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted ADS Prices shall equal the
ADS Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is
the Conversion Rate immediately prior to such adjustment giving rise to the ADS Price adjustment and the
denominator of which is the Conversion Rate as so adjusted. The number of Additional ADSs set forth in the table
below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section
14.04.
71
(e) The following table sets forth the number of Additional ADSs to be received per US$1,000
principal amount of Notes pursuant to this Section 14.03 for each ADS Price and Effective Date set forth below:
Effective Date
September 27, 2019
October 1, 2020
October 1, 2021
October 1, 2022
October 1, 2023
October 1, 2024
US$30.99
8.8004
8.8004
8.8004
8.8004
8.8004
8.8004
US$32.50
8.2708
8.2708
8.2708
7.5074
7.3178
7.3012
US$35.00
7.0663
7.0663
6.9537
6.1454
5.7271
5.1034
US$37.50
6.0717
6.0645
5.7784
5.0453
4.4653
3.1987
US$40.00
5.2433
5.1683
4.8280
4.1533
3.4703
1.5320
US$42.61
4.5205
4.3952
4.0237
3.3987
2.6604
0.0000
ADS Price
US$45.00
3.9618
3.8040
3.4207
2.8349
2.0824
0.0000
US$50.00
3.0380
2.8428
2.4650
1.9516
1.2452
0.0000
US$55.39
2.3129
2.1063
1.7584
1.3158
0.7157
0.0000
US$60.00
1.8487
1.6453
1.3302
0.9442
0.4460
0.0000
US$70.00 US$80.00 US$100.00
0.7463
1.1624
0.6010
0.9847
0.4190
0.7414
0.2263
0.4636
0.0510
0.1576
0.0000
0.0000
0.3145
0.2259
0.1296
0.0458
0.0009
0.0000
US$120.00
0.1278
0.0782
0.0319
0.0033
0.0000
0.0000
The exact ADS Prices and Effective Dates may not be set forth in the table above, in which case:
(i) if the ADS Price is between two ADS Prices in the table above or the Effective Date is
between two Effective Dates in the table, the number of Additional ADSs shall be determined by a
straight-line interpolation between the number of Additional ADSs set forth for the higher and lower ADS
Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year;
(ii) if the ADS Price is greater than US$120.00 per ADS (subject to adjustment in the same
manner as the ADS Prices set forth in the column headings of the table above pursuant to subsection (d)
above), no Additional ADSs shall be added to the Conversion Rate; and
(iii) if the ADS Price is less than US$30.99 per ADS (subject to adjustment in the same manner
as the ADS Prices set forth in the column headings of the table above pursuant to subsection (d) above), no
Additional ADSs shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate per US$1,000 principal amount of Notes
exceed 32.2684 ADSs, subject to adjustment in the same manner as the Conversion Rate pursuant to Section
14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to
Section 14.04.
(g) If the Holder elects to convert its Notes in connection with the Company’s election to (i) redeem
the Notes in respect of a Change in Tax Law pursuant to Section 16.01 or (ii) redeem the Notes at the Company’s
option pursuant to Section 16.02, in each case, the Conversion Rate shall be increased by a number of additional
ADSs determined pursuant to this Section 14.03(g). The Company shall settle conversions of Notes as described
in Section 14.02 and, for the avoidance of doubt, pay Additional Amounts, if any, with respect to any such
conversion.
A conversion shall be deemed to be “in connection with” the Company’s election to redeem the Notes in
respect of a Change in Tax Law or redeem the Notes at the Company’s option if the relevant Notice of Conversion
is received by the Conversion Agent during the period from, and including, the date the Company provides the
related notice of redemption to Holders until the close of business on the second Business Day immediately
preceding the Tax
72
Redemption Date or the Optional Redemption Date, as the case may be (or, if the Company fails to pay the
Redemption Price, such later date on which the Company pays the Redemption Price).
Simultaneously with providing such notice of redemption, the Company shall publish a notice containing
this information in a newspaper of general circulation in The City of New York or publish the information on the
Company’s website or through such other public medium as the Company may use at that time.
The number of additional ADSs by which the Conversion Rate will be increased in the event the Company
elects to redeem the Notes pursuant to Article 16 hereof will be determined by reference to the table in clause (e)
above based on the Redemption Reference Date and the Redemption Reference Price (each as defined below), but
determined for purposes of this Section 14.03(g) as if (x) the Holder had elected to convert its Notes in connection
with a Make-Whole Fundamental Change, (y) the applicable “Redemption Reference Date” were the “Effective
Date” as specified in clause (c) above and (z) the applicable “Redemption Reference Price” were the “ADS price”
as specified in clause (c) above. “Redemption Reference Date” means the date the Company delivers the
relevant Redemption Notice. “Redemption Reference Price” means, for any conversion in connection with the
Company’s election to redeem the Notes in respect of a Change in Tax Law or redeem the Notes at the Company’s
option, as the case may be, the average of the Last Reported Sale Prices of the ADSs over the 10 consecutive
Trading Day immediately preceding, the date the Company delivers the relevant Redemption Notice.
Section 14.04 Adjustment of Conversion Rate. If the number of Class A Ordinary Shares represented by
the ADSs is changed, after the date of this Indenture, for any reason other than one or more of the events
described in this Section 14.04, the Company shall make an appropriate adjustment to the Conversion Rate such
that the number of Class A Ordinary Shares represented by the ADSs upon which conversion of the Notes is
based remains the same.
Notwithstanding the adjustment provisions described in this Section 14.04, if the Company distributes to
holders of the Class A Ordinary Shares any cash, rights, options, warrants, shares of Capital Stock or similar
equity interest, evidences of indebtedness or other assets or property of the Company (but excluding Expiring
Rights) and a corresponding distribution is not made to holders of the ADSs, but, instead, the ADSs shall
represent, in addition to Class A Ordinary Shares, such cash, rights, options, warrants, shares of Capital Stock or
similar equity interest, evidences of indebtedness or other assets or property of the Company, then an adjustment
to the Conversion Rate described in this Section 14.04 shall not be made until and unless a corresponding
distribution (if any) is made to holders of the ADSs, and such adjustment to the Conversion Rate shall be based on
the distribution made to the holders of the ADSs and not on the distribution made to the holders of the Class A
Ordinary Shares. However, in the event that the Company issues or distributes to all holders of the Class A
Ordinary Shares any Expiring Rights, notwithstanding the immediately preceding sentence, the Company shall
adjust the Conversion Rate pursuant to Section 14.04(b) (in the case of Expiring Rights described in clause (b)
below entitling holders of the Class A Ordinary Shares for a period of not more than 45 calendar days after the
announcement date of such issuance to subscribe for or purchase Class A Ordinary Shares or ADSs) or Section
14.04(c) (in the case of all other Expiring Rights).
73
For the avoidance of doubt, if any event described in this Section 14.04 results in a change to the number
of Class A Ordinary Shares represented by the ADSs, then such a change shall be deemed to satisfy the
Company’s obligation to effect the relevant adjustment to the Conversion Rate on account of such an event to the
extent to which such change reflects what a corresponding change to the Conversion Rate would have been on
account of such event.
The Conversion Rate shall be adjusted from time to time by the Company if any of the following events
occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes
participate (other than in the case of a (x) share split or share combination or (y) a tender or exchange offer), at the
same time and upon the same terms as holders of the ADSs and solely as a result of holding the Notes, in any of
the transactions described in this Section 14.04, without having to convert their Notes, as if they held a number of
ADSs equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by
such Holder. Neither the Trustee nor the Conversion Agent shall have any responsibility to monitor the accuracy
of any calculation of adjustment of the Conversion Rate and the same shall be conclusive and binding on the
Holders, absent manifest error. Notice of such adjustment to the Conversion Rate shall be given by the Company
promptly in writing to the Holders, the Trustee and the Conversion Agent and shall be conclusive and binding on
the Holders, absent manifest error.
(a) If the Company exclusively issues Class A Ordinary Shares as a dividend or distribution on the
Class A Ordinary Shares, or if the Company effects a share split or share combination, the Conversion Rate shall
be adjusted based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for
the ADSs of such dividend or distribution, or immediately prior to the open of business on the
Effective Date of such share split or share combination, as applicable;
CR1 = the Conversion Rate in effect after the open of business on such Ex-Dividend Date or Effective Date,
as applicable;
OS0 = the number of Class A Ordinary Shares outstanding immediately prior to the open of business on
such Ex-Dividend Date or Effective Date, as applicable (before giving effect to any such dividend,
distribution, split or combination) ; and
OS1 = the number of Class A Ordinary Shares outstanding immediately after giving effect to such dividend,
distribution, share split or share combination.
Any adjustment made under this Section 14.04(a) shall become effective immediately after the open of business
on the Ex-Dividend Date for the ADSs for such dividend or distribution, or immediately after the open of business
on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the
type described in this Section
74
14.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of
the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.
(b) If the Company issues to all or substantially all holders of the Class A Ordinary Shares (directly or
in the form of ADSs) (other than in connection with a stockholder rights plan) any rights, options or warrants
entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to
subscribe for or purchase Class A Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share
that is less than the average of the Last Reported Sale Prices of the Class A Ordinary Shares or the ADSs, as the
case may be (divided by, in the case of the ADSs, the number of Class A Ordinary Shares then represented by one
ADS), for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the
following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for
the ADSs for such issuance;
CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS0 = the number of Class A Ordinary Shares outstanding immediately prior to the open of business on
such Ex-Dividend Date;
X = the total number of Class A Ordinary Shares (directly or in the form of ADSs) deliverable pursuant to
such rights, options or warrants; and
Y = the number of Class A Ordinary Shares equal to (i) the aggregate price payable to exercise such rights,
options or warrants, divided by (ii) the quotient of (a) the average of the Last Reported Sale Prices of
the ADSs over the 10 consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the date of announcement of the issuance of such rights, options or warrants
divided by (b) the number of Class A Ordinary Shares then represented by one ADS.
Any increase made under this Section 14.04(b) shall be made successively whenever any such rights, options or
warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date
for the ADSs for such issuance. To the extent that Class A Ordinary Shares or ADSs are not delivered after the
expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that
would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made
on the basis of delivery of only the number of Class A Ordinary Shares actually delivered
75
(directly or in the form of ADSs). If such rights, options or warrants are not so issued, the Conversion Rate shall
be decreased to the Conversion Rate that would then be in effect if such the Ex-Dividend Date for the ADSs for
such issuance had not occurred.
For purposes of this Section 14.04(b) and Section 14.01(b)(ii)(A), in determining whether any rights,
options or warrants entitle the holders to subscribe for or purchase Class A Ordinary Shares (directly or in the
form of ADSs) at a price per Ordinary Share that is less than such average of the Last Reported Sale Prices of the
Class A Ordinary Shares or the ADSs, as the case may be (divided by, in the case of the ADSs, the number of
Class A Ordinary Shares then represented by one ADS), for the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the date of announcement for such issuance, and in
determining the aggregate offering price of such Class A Ordinary Shares or ADSs, there shall be taken into
account any consideration received by the Company for such rights, options or warrants and any amount payable
on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the
Board of Directors.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or
property of the Company or rights, options or warrants to acquire its Capital Stock or other securities, to all or
substantially all holders of the Class A Ordinary Shares (directly or in the form of ADSs), excluding (i) dividends,
distributions or issuances as to which an adjustment was effected pursuant to Section 14.04(a) or Section 14.04(b),
(ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section
14.04(d), and (iii) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (any of
such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to
acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the Conversion Rate
shall be increased based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date
for the ADSs for such distribution;
CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
SP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Class A
Ordinary Shares then represented by one ADS) over the 10 consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such
distribution; and
FMV = the fair market value (as determined by the Board of Directors) of the Distributed Property with
respect to each outstanding Class A Ordinary Share
76
(directly or in the form of ADSs) on the Ex-Dividend Date for the ADSs for such distribution.
Any increase made under the portion of this Section 14.04(c) above shall become effective immediately after the
open of business on the Ex-Dividend Date for the ADSs for such distribution. If such distribution is not so paid or
made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such
distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or
greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in
respect of each US$1,000 principal amount thereof, at the same time and upon the same terms as holders of the
ADSs receive the Distributed Property, the amount and kind of Distributed Property such Holder would have
received if such Holder owned a number of ADSs equal to the Conversion Rate in effect on the Record Date for
the ADSs for the distribution.
With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment of a
dividend or other distribution on the Class A Ordinary Shares (directly or in the form of ADSs) of shares of
Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit
of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities
exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the end of the Valuation Period;
CR1 = the Conversion Rate in effect immediately after the end of the Valuation Period;
FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest
distributed to holders of the Class A Ordinary Shares (directly or in the form of ADSs) applicable to
one Class A Ordinary Share (determined by reference to the definition of Last Reported Sale Price as
set forth in Section 1.01 as if references therein to the ADSs were to such Capital Stock or similar
equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-
Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Class A
Ordinary Shares then represented by one ADS) over the Valuation Period.
The increase to the Conversion Rate under the preceding paragraph shall occur at the close of business on the last
Trading Day of the Valuation Period; provided that (x) in respect of any
77
conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the
Valuation Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser
number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion
Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement
or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for
such conversion and within the Valuation Period, references to “10” in the preceding paragraph shall be deemed to
be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such
Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day.
For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights, options or
warrants distributed by the Company to all holders of the Class A Ordinary Shares (directly or in the form of
ADSs) entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Class A
Ordinary Shares (either initially or under certain circumstances), which rights, options or warrants, until the
occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such Class A
Ordinary Shares (directly or in the form of ADSs); (ii) are not exercisable; and (iii) are also issued in respect of
future issuances of the Class A Ordinary Shares (directly or in the form of ADSs), shall be deemed not to have
been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this
Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights,
options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to
the Conversion Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including any
such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon
the occurrence of which such rights, options or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be
deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with
such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such
date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the
immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 14.04(c) was made, (1) in the case of
any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any
holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such
rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give
effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per Ordinary Share redemption or purchase price received by a holder or holders of Class
A Ordinary Shares (directly or in the form of ADSs) with respect to such rights, options or warrants (assuming
such holder had retained such rights, options or warrants), made to all holders of Class A Ordinary Shares
(directly or in the form of ADSs) as of the date of such redemption or purchase, and (2) in the case of such rights,
options or warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
78
For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any dividend or
distribution to which this Section 14.04(c) is applicable also includes one or both of:
(A) a dividend or distribution of Class A Ordinary Shares (directly or in the form of ADSs) to which
Section 14.04(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the
“Clause B Distribution”),
then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution,
shall be deemed to be a dividend or distribution to which this Section 14.04(c) is applicable (the “Clause C
Distribution”) and any Conversion Rate adjustment required by this Section 14.04(c) with respect to such Clause
C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to
immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 14.04(a)
and Section 14.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the
“Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-
Dividend Date of the Clause C Distribution and (II) any Class A Ordinary Shares (directly or in the form of
ADSs) included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding
immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of
Section 14.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the
meaning of Section 14.04(b).
(d) If any cash dividend or distribution is made to all or substantially all holders of the Class A
Ordinary Shares (directly or in the form of ADSs), the Conversion Rate shall be adjusted based on the following
formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date
for the ADSs for such dividend or distribution;
CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for
such dividend or distribution;
SP0 = the Last Reported Sale Price of the ADSs (divided by the number of Class A Ordinary Shares then
represented by one ADS) on the Trading Day immediately preceding the Ex-Dividend Date for such
dividend or distribution; and
C = the amount in cash per Class A Ordinary Share the Company distributes to all or substantially all
holders of the Class A Ordinary Shares (directly or in the form of ADSs).
79
Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open of business on
the Ex-Dividend Date for the ADSs for such dividend or distribution. If such dividend or distribution is not so
paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to
make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend
or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or
greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for
each US$1,000 principal amount of Notes, at the same time and upon the same terms as holders of the ADSs, the
amount of cash that such Holder would have received if such Holder owned a number of ADSs equal to the
Conversion Rate on the Record Date for the ADSs for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer
for the Class A Ordinary Shares (directly or in the form of ADSs), to the extent that the cash and value of any
other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale
Prices of the ADSs (divided by the number of Class A Ordinary Shares then represented by one ADS) over the 10
consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such
tender or exchange offer expires, the Conversion Rate shall be increased based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day
immediately following, and including, the Trading Day next succeeding the date such tender or
exchange offer expires;
CR1 = the Conversion Rate in effect immediately after the close of business on the 10th Trading Day
immediately following, and including, the Trading Day next succeeding the date such tender or
exchange offer expires;
AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors)
paid or payable for Class A Ordinary Shares or ADSs, as the case may be, purchased in such tender
or exchange offer;
OS0 = the number of Class A Ordinary Shares outstanding immediately prior to the date such tender or
exchange offer expires (prior to giving effect to the purchase of all Class A Ordinary Shares or
ADSs, as the case may be, accepted for purchase or exchange in such tender or exchange offer);
OS1 = the number of Class A Ordinary Shares outstanding immediately after the date such tender or
exchange offer expires (after giving effect to the purchase of all
80
Class A Ordinary Shares or ADSs, as the case may be, accepted for purchase or exchange in such
tender or exchange offer); and
SP1 = the average of the Last Reported Sale Prices of the ADSs (divided by the number of Class A
Ordinary Shares then represented by one ADS) over the 10 consecutive Trading Day period
commencing on, and including, the Trading Day next succeeding the date such tender or exchange
offer expires.
The increase to the Conversion Rate under this Section 14.04(e) shall occur at the close of business on the
10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or
exchange offer expires; provided that (x) in respect of any conversion of Notes for which Physical Settlement is
applicable, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and
including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10”
or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have
elapsed between the date that such tender or exchange offer expires and the Conversion Date in determining the
Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination
Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion
and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the
expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be
deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such
tender or exchange offer and such Trading Day in determining the Conversion Rate as of such Trading Day.
(f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, if a
Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has converted its
Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record
holder of the ADSs as of the related Conversion Date as described under Section 14.02(i) based on an adjusted
Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in
this Section 14.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such
converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the ADSs on
an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such
adjustment.
(g) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of
Class A Ordinary Shares or ADSs or any securities convertible into or exchangeable for Class A Ordinary Shares
or ADSs or the right to purchase Class A Ordinary Shares or ADSs or such convertible or exchangeable securities.
(h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.04,
and to the extent permitted by applicable law and subject to the applicable rules of The Nasdaq Global Market and
any other securities exchange on which any of the Company’s securities are then listed, the Company from time to
time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Board of
Directors determines that such increase would be in the Company’s best interest, and the Company may (but is not
81
required to) increase the Conversion Rate to avoid or diminish any income tax to holders of the Class A Ordinary
Shares or the ADSs or rights to purchase Class A Ordinary Shares or ADSs in connection with a dividend or
distribution of Class A Ordinary Shares or ADSs (or rights to acquire Class A Ordinary Shares or ADSs) or
similar event.
(i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not be
adjusted:
(i) upon the issuance of any Class A Ordinary Shares or ADSs pursuant to any present or
future plan providing for the reinvestment of dividends or interest payable on the Company’s securities
and the investment of additional optional amounts in Class A Ordinary Shares or ADSs under any plan;
(ii) upon the issuance of any Class A Ordinary Shares or ADSs or options or rights to purchase
those Class A Ordinary Shares or ADSs pursuant to any present or future employee, director or consultant
benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;
(iii) upon the repurchase of any Ordinary Shares pursuant to an open-market share repurchase
program or other buyback transaction that is not a tender offer or exchange offer of the nature described in
clause (e) of this Section 14.04 above;
(iv) upon the issuance of any Class A Ordinary Shares or ADSs pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) of this
subsection and outstanding as of the date the Notes were first issued;
(v) solely for a change in the par value of the Class A Ordinary Shares or ADSs; or
(vi) for accrued and unpaid Special Interest, if any.
(j) All calculations and other determinations under this Article 14 shall be made by the Company and
shall be made to the nearest one-ten thousandth (1/10,000) of an ADS.
(k) If an adjustment to the Conversion Rate otherwise required by this Section 14.04 would result in a
change of less than 1% to the Conversion Rate, then, notwithstanding the foregoing, the Company may, at its
election, defer and carry forward such adjustment, except that all such deferred adjustments must be given effect
immediately upon the earliest to occur of the following: (i) when all such deferred adjustments would result in an
aggregate change of at least 1% to the Conversion Rate, (ii) on the Conversion Date for any Notes (in the case of
Physical Settlement), (iii) on each Trading Day of any Observation Period related to any conversion of Notes (in
the case of Cash Settlement or Combination Settlement), (iv) on the Effective Date of any Make-Whole
Fundamental Change, in each case, unless the adjustment has already been made, (v) on any Redemption
Reference Date, unless the adjustment has already been made and (vi) every one year anniversary of the date of
this Indenture. In addition, the Company shall not account for such deferrals when determining whether any of the
conditions
82
described in Section 14.01(b) have been satisfied or what number of ADSs a Holder would have held on a given
day had it converted its Notes.
(l) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly deliver
to the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth (i) the adjusted
Conversion Rate, (ii) the subsection of this Section 14.04 pursuant to which such adjustment has been made,
showing in reasonable detail the facts upon which such adjustment is based, and (iii) the date as of which such
adjustment is effective, and such Officer’s Certificate shall be conclusive evidence of the accuracy of such
adjustment absent manifest error. Unless and until a Responsible Officer of the Trustee shall have received such
Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion
Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect.
Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes
effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder at its last address
appearing on the Note Register of this Indenture. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment. Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and calculations contained therein.
(m) For purposes of this Section 14.04, the number of Class A Ordinary Shares at any time outstanding
shall not include Class A Ordinary Shares held in the treasury of the Company (directly or in the form of ADSs)
so long as the Company does not pay any dividend or make any distribution on Class A Ordinary Shares held in
the treasury of the Company (directly or in the form of ADSs), but shall include Class A Ordinary Shares issuable
in respect of scrip certificates issued in lieu of fractions of Class A Ordinary Shares.
Section 14.05 Adjustments of Prices. Whenever any provision of this Indenture requires the Company to
calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values, the Daily Settlement
Amounts, the ADS Prices for purposes of a Make-Whole Fundamental Change or the Redemption Reference
Price for purposes of the Company’s election to redeem the Notes in connection with changes in tax laws or to
redeem the Notes as described under Section 16.02 over a span of multiple days, the Board of Directors shall
make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes
effective pursuant to Section 14.04, or any event requiring an adjustment to the Conversion Rate pursuant to
Section 14.04 where the Ex-Dividend Date, Effective Date or expiration date, as the case may be, of the event
occurs, at any time during the period when such Last Reported Sale Prices, ADS Prices, the Daily VWAPs, the
Daily Conversion Values or the Daily Settlement Amounts are to be calculated.
Section 14.06 Class A Ordinary Shares to Be Fully Paid. The Company shall provide, free from
preemptive rights, out of its authorized but unissued Class A Ordinary Shares or Class A Ordinary Shares held in
treasury, a sufficient number of Class A Ordinary Shares that corresponds to the number of ADSs due upon
conversion of the Notes from time to time as such Notes are presented for conversion (assuming that at the time of
computation of such number of
83
Class A Ordinary Shares, all such Notes would be converted by a single Holder and that Physical Settlement were
applicable).
Section 14.07 Effect of Recapitalizations, Reclassifications and Changes of the Class A Ordinary Shares.
(a) In the case of:
(i) any recapitalization, reclassification or change of the ADSs or Class A Ordinary Shares
(other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger, combination or similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company
and the Company’s Subsidiaries substantially as an entirety or
(iv) any statutory share exchange,
in each case, as a result of which the ADS or the Class A Ordinary Shares would be converted into, or exchanged
for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a
“Merger Event”), then, prior to or at the effective time of such Merger Event, the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under
Section 10.01(f) providing that, at and after the effective time of such Merger Event, the right to convert each
US$1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into
the kind and amount of shares of stock, other securities or other property or assets (including cash or any
combination thereof) that a holder of a number of ADSs equal to the Conversion Rate immediately prior to such
Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of
Reference Property” meaning the kind and amount of Reference Property that a holder of one ADS is entitled to
receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A)
the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the
case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash
upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any
ADSs that the Company would have been required to deliver upon conversion of the Notes in accordance with
Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that
number of ADSs would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be
calculated based on the value of a unit of Reference Property that a holder of one ADS would have received in
such transaction.
If the Merger Event causes the ADSs or Class A Ordinary Shares to be converted into, or exchanged for,
the right to receive more than a single type of consideration (determined based in part upon any form of holder
election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the
weighted average of the types and amounts of consideration actually received by the holders of ADSs, and (ii) the
unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration
referred to
84
in clause (i) attributable to one ADS. If the holders of the ADSs or Class A Ordinary Shares receive only cash in
such Merger Event, then for all conversions for which the relevant Conversion Date occurs after the effective date
of such Merger Event (A) the consideration due upon conversion of each US$1,000 principal amount of Notes
shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be
increased by any Additional ADSs pursuant to Section 14.03), multiplied by the price paid per ADS or Class A
Ordinary Share, as applicable, in such Merger Event and (B) the Company shall satisfy the Conversion Obligation
by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion
Date. The Company shall provide written notice to Holders, the Trustee and the Conversion Agent (if other than
the Trustee) of such weighted average as soon as practicable after such determination is made.
Such supplemental indenture described in the second immediately preceding paragraph shall provide for
anti-dilution and other adjustments that shall be as nearly equivalent as is practicable to the adjustments provided
for in this Article 14 (it being understood that no such adjustments shall be required with respect to any portion of
the Reference Property that does not consist of shares of Common Equity (however evidenced) or depositary
receipts in respect thereof). If, in the case of any Merger Event, the Reference Property includes shares of stock,
securities or other property or assets (including cash or any combination thereof) of a Person other than the
Company or the successor or purchasing Person, as the case may be, in such Merger Event, then such other Person
shall also execute such supplemental indenture, and such supplemental indenture shall contain such additional
provisions to protect the interests of the Holders of the Notes, including the right of Holders to require the
Company to repurchase their Notes upon a Fundamental Change pursuant to Section 15.02 and the right of
Holders to require the Company to repurchase their Notes on October 1, 2022 pursuant to Section 15.01, as the
Board of Directors shall consider necessary by reason of the foregoing.
(b) [RESERVED]
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with
this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes
into cash, ADSs or a combination of cash and ADSs, as applicable, as set forth in Section 14.01 and Section 14.02
prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Section 14.08 Certain Covenants. (a) The Company covenants that all ADSs delivered upon conversion
of Notes, and all Class A Ordinary Shares represented by such ADSs, will be fully paid and non-assessable by the
Company and free from all taxes, liens and charges with respect to the issue thereof.
(b) The Company covenants that, if any ADSs to be provided for the purpose of conversion of Notes
hereunder, or any Class A Ordinary Shares represented by such ADSs, require registration with or approval of any
governmental authority under any federal or state law before such ADSs may be validly issued upon conversion,
the Company will, to the extent then
85
permitted by the rules and interpretations of the Commission, secure such registration or approval, as the case may
be.
(c) The Company further covenants that if at any time the ADSs shall be listed on any national
securities exchange or automated quotation system the Company will list and keep listed, so long as the ADSs
shall be so listed on such exchange or automated quotation system, any ADSs deliverable upon conversion of the
Notes.
(d) The Company further covenants to take all actions and obtain all approvals and registrations
required with respect to the conversion of the Notes into ADSs and the issuance, and deposit into the ADS facility,
of the Class A Ordinary Shares represented by such ADSs. The Company also undertakes to maintain, as long as
any Notes are outstanding, the effectiveness of a registration statement on Form F-6 relating to the ADSs and an
adequate number of ADSs available for issuance thereunder such that ADSs can be delivered upon conversion of
the Notes in accordance with the terms of this Indenture, the Notes, the Unrestricted Deposit Agreement or
Restricted Deposit Agreement, as applicable, and the procedures agreed between the Company and the Depositary
with respect to any ADSs issued upon conversion of the Notes prior to the Resale Restriction Termination Date.
Section 14.09 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time
be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or
whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with
respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee
and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or
amount) of any ADSs, or of any securities, property or cash that may at any time be issued or delivered upon the
conversion of any Note; and the Trustee and any other Conversion Agent make no representations with respect
thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to
issue, transfer or deliver any ADSs or stock certificates or other securities or property or cash upon the surrender
of any Note for the purpose of conversion, the accuracy or inaccuracy of any mathematical calculation or
formulae under this Indenture, whether by the Company or any Person so authorized by the Company for such
purpose under this Indenture or the failure by the Company to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or
amount of ADSs or securities or property (including cash) receivable by Holders upon the conversion of their
Notes after any event referred to in such Section 14.07 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.01, may accept (without any independent investigation) as conclusive
evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate
(which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining
whether any event contemplated by Section 14.01(b) has occurred that makes the Notes eligible for conversion or
no longer eligible therefor until the Company has
86
delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01(b) with respect to the
commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent
may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion Agent
immediately after the occurrence of any such event or at such other times as shall be provided for in Section
14.01(b). Except as otherwise expressly provided herein, neither the Trustee nor any other agent acting under this
Indenture (other than the Company, if acting in such capacity) shall have any obligation to make any calculation
or to determine whether the Notes may be surrendered for conversion pursuant to this Indenture, or to notify the
Company or the Depositary or any of the Holders if the Notes have become convertible pursuant to the terms of
this Indenture.
Section 14.10 Notice to Holders Prior to Certain Actions. In case of any:
(a) action by the Company or one of its Subsidiaries that would require an adjustment in the
Conversion Rate pursuant to Section 14.04 or Section 14.11;
(b) Merger Event; or
(c) voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of its
Subsidiaries;
then, in each case (unless notice of such event is otherwise required pursuant to another provision of this
Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the
Trustee) and to be delivered to each Holder at its address appearing on the Note Register, as promptly as possible
but in any event at least 20 days prior to the applicable date hereinafter specified, a notice stating (i) the date on
which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a
record is not to be taken, the date as of which the holders of Class A Ordinary Shares or ADSs, as the case may
be, of record are to be determined for the purposes of such action by the Company or one of its Subsidiaries, or
(ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected to become effective
or occur, and the date as of which it is expected that holders of Class A Ordinary Shares or ADSs, as the case may
be, of record shall be entitled to exchange their Class A Ordinary Shares or ADSs, as the case may be, for
securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up. Failure to
give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or
one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.
Section 14.11 Stockholder Rights Plans. To the extent that the Company has a rights plan in effect upon
conversion of the Notes, each ADS, if any, delivered upon such conversion shall be entitled to receive (either
directly or in respect of the Class A Ordinary Shares underlying such ADSs) the appropriate number of rights, if
any, and the certificates representing the ADSs delivered upon such conversion shall bear such legends, if any, in
each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from
time to time. However, if, prior to any conversion, the rights have separated from the Class A Ordinary Shares
underlying the ADSs in accordance with the provisions of the applicable stockholder rights plan, the Conversion
Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of
the Class A Ordinary Shares Distributed
87
Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or
redemption of such rights.
Section 14.12 Limit on Issuance of ADSs Upon Conversion. Notwithstanding anything to the contrary in
this Indenture, if an event occurs that would result in an increase in the Conversion Rate by an amount in excess
of limitations imposed by any shareholder approval rules or listing standards of any national or regional securities
exchange that are applicable to the Company, the Company will, at its option, either obtain stockholder approval
of any issuance of ADSs upon conversion of the Notes in excess of such limitations or pay cash in lieu of
delivering any ADSs otherwise deliverable upon conversions in excess of such limitations based on the Daily
VWAP for each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering ADSs,
the Company pays cash pursuant to this Section 14.12.
Section 14.13 Termination of Depositary Receipt Program. If the Class A Ordinary Shares cease to be
represented by ADSs issued under a depositary receipt program sponsored by the Company, all references in this
Indenture to the ADSs shall be deemed to have been replaced by a reference to the number of Class A Ordinary
Shares (and other property, if any) represented by the ADSs on the last day on which the ADSs represented the
Class A Ordinary Shares and as if the Class A Ordinary Shares and the other property had been distributed to
holders of the ADSs on that day. In addition, all references to the Last Reported Sale Price of the ADSs will be
deemed to refer to the Last Reported Sale Price of the Class A Ordinary Shares, and other appropriate
adjustments, including adjustments to the Conversion Rate, will be made to reflect such change. In making such
adjustments, where currency translations between U.S. dollars and any other currency are required, the exchange
rate in effect on the date of determination will apply. The Company shall provide written notice to the Holders, the
Trustee and the Conversion Agent (if other than the Trustee) upon the occurrence of the foregoing.
Section 14.14 Exchange In Lieu Of Conversion. (a) When a Holder surrenders its Notes for conversion,
the Company may, at its election (an “Exchange Election”), direct the Conversion Agent to deliver, on or prior to
the Business Day immediately following the Conversion Date, such Notes to one or more financial institutions
designated by the Company (each, a “Designated Financial Institution”) for exchange in lieu of conversion. In
order to accept any Notes surrendered for conversion, the Designated Financial Institution(s) must agree to timely
pay and/or deliver, as the case may be, in exchange for such Notes, the cash, ADSs or a combination thereof, as
applicable, that would otherwise be due upon conversion pursuant to Section 14.02 (the “Conversion
Consideration”). If the Company makes an Exchange Election, the Company shall, by the close of business on
the Business Day following the relevant Conversion Date, notify in writing the Trustee, the Conversion Agent (if
other than the Trustee) and the Holder surrendering Notes for conversion that the Company has made the
Exchange Election and the Company shall promptly notify the Designated Financial Institution(s) of the relevant
deadline for delivery of the Conversion Consideration and the type of Conversion Consideration to be paid and/or
delivered, as the case may be.
(b) Any Notes exchanged by the Designated Financial Institution(s) shall remain outstanding, subject
to applicable procedures of the Depositary. If the Designated Financial Institution(s) agree(s) to accept any Notes
for exchange but does not timely pay and/or deliver, as the case may be, the related Conversion Consideration, or
if such Designated Financial
88
Institution(s) does not accept the Notes for exchange, the Company shall pay and/or deliver, as the case may be,
the relevant Conversion Consideration, as, and at the time, required pursuant to this Indenture as if the Company
had not made the Exchange Election.
(c) The Company’s designation of any Designated Financial Institution(s) to which the Notes may be
submitted for exchange does not require such Designated Financial Institution(s) to accept any Notes.
ARTICLE 15
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 15.01 Repurchase at Option of Holders(a). (a) Each Holder shall have the right, at such Holder’s
option, to require the Company to repurchase for cash on October 1, 2022 (the “Repurchase Date”), all of such
Holder’s Notes, or any portion thereof that is an integral multiple of US$1,000 principal amount, at a repurchase
price (the “Repurchase Price”) that is equal to 100% of the principal amount of the Notes to be repurchased, plus
any accrued and unpaid Special Interest to, but excluding, the Repurchase Date; (unless the repurchase date falls
after a Special Interest Record Date but on or prior to the immediately succeeding Special Interest Payment Date,
in which case the Company shall pay on the Special Interest Payment Date the full amount of any accrued and
unpaid Special Interest to the Holders of such Notes as of the close of business on such Special Interest Record
Date immediately preceding the Repurchase Date, and the Repurchase Price shall be equal to 100% of the
principal amount of the Notes to be repurchased). Not later than 20 Business Days prior to the Repurchase Date,
the Company shall mail a notice (the “Company Notice”) by first class mail to the Trustee, to the Paying Agent
and to each Holder at its address shown in the Note Register of the Note Registrar (and to beneficial owners as
required by applicable law). The Company Notice shall include a form of Repurchase Notice to be completed by a
holder and shall state:
(i) the last date on which a Holder may exercise its repurchase right pursuant to this Section
15.01 (the “Repurchase Expiration Time”);
(ii) the Repurchase Price;
(iii) the Repurchase Date;
(iv) the name and address of the Conversion Agent and Paying Agent;
(v) that the Notes with respect to which a Repurchase Notice has been delivered by a Holder
may be converted only if the Holder withdraws the Repurchase Notice in accordance with the terms of this
Indenture;
(vi) that the Holder shall have the right to withdraw any Notes surrendered prior to the
Repurchase Expiration Time; and
(vii) the procedures a Holder must follow to exercise its repurchase rights under this Section
15.01 and a brief description of those rights.
89
At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Company Notice shall be prepared by
the Company.
Simultaneously with providing the Company Notice, the Company shall publish a notice containing the
information included in the Company Notice in a newspaper of general circulation in The City of New York or
publish such information on the Company’s website or through such other public medium as the Company may
use at that time.
No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’
repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section
15.01.
Repurchases of Notes under this Section 15.01 shall be made, at the option of the Holder thereof, upon:
(A) delivery to the Paying Agent by the Holder of a duly completed notice (the
“Repurchase Notice”) in the form set forth in Attachment 3 to the Form of Note attached hereto as
Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for
surrendering interests in global notes, if the Notes are Global Notes, in each case during the period
beginning at any time from the open of business on the date that is 20 Business Days prior to the
Repurchase Date until the close of business on the second Business Day immediately preceding the
Repurchase Date; and
(B) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any
time after delivery of the Repurchase Notice (together with all necessary endorsements) at the
Paying Agent Office, or book- entry transfer of the Notes, if the Notes are Global Notes, in
compliance with the procedures of the Depositary, in each case such delivery being a condition to
receipt by the Holder of the Repurchase Price therefor.
Each Repurchase Notice shall state:
(A) in the case of Physical Notes, the certificate numbers of the Notes to be delivered
for repurchase;
(B) the portion of the principal amount of the Notes to be repurchased, which must be
US$1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable
provisions of the Notes and this Indenture; provided, however, that if the Notes are Global Notes,
the Repurchase Notice must comply with appropriate Depositary procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 15.01 shall have the right to withdraw, in whole or in part, such
Repurchase Notice at any time prior to the close of business
90
on the second Business Day immediately preceding the Repurchase Date by delivery of a duly completed written
notice of withdrawal to the Paying Agent in accordance with Section 15.03.
The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Notice or
written notice of withdrawal thereof.
No Repurchase Notice with respect to any Notes may be delivered and no Note may be surrendered for
repurchase pursuant to this Section 15.01 by a Holder thereof to the extent such Holder has also delivered a
Fundamental Change Repurchase Notice with respect to such Note in accordance with Section 15.02 and not
validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03.
(b) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the
Holders on the Repurchase Date if the principal amount of the Notes has been accelerated, and such acceleration
has not been rescinded, on or prior to such Repurchase Date (except in the case of an acceleration resulting from a
default by the Company in the payment of the Repurchase Price with respect to such Notes). The Paying Agent
will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the
Notes (except in the case of an acceleration resulting from a default by the Company in the payment of the
Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in
compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return
or cancellation, as the case may be, the Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.
Section 15.02 Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental
Change occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to
repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to US$1,000 or an integral
multiple of US$1,000, on the Business Day (the “Fundamental Change Repurchase Date”) notified in writing
by the Company as set forth in Section 15.02(c) that is not less than 20 Business Days or more than 35 Business
Days following the date of the Fundamental Change Company Notice, at a repurchase price equal to 100% of the
principal amount thereof, plus any accrued and unpaid Special Interest thereon to, but excluding, the Fundamental
Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change
Repurchase Date falls after a Special Interest Record Date but on or prior to the Special Interest Payment Date to
which such Special Interest Record Date relates, in which case the Company shall instead pay the full amount of
any accrued and unpaid Special Interest to Holders of record as of such Special Interest Record Date, and the
Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased
pursuant to this Article 15.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof,
upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental
Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as
Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for
surrendering interests in Global Notes,
91
if the Notes are Global Notes, in each case on or before the close of business on the second Business Day
immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after
delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for
transfer) or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the
procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the
Fundamental Change Repurchase Price therefor.
The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for
repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must be US$1,000 or
an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions
of the Notes and this Indenture; provided, however, that if the Notes are Global Notes, the Fundamental
Change Repurchase Notice must comply with appropriate Depositary procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in
whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the
second Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 15.03.
The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change
Repurchase Notice or written notice of withdrawal thereof.
No Fundamental Change Repurchase Notice with respect to any Notes may be delivered and no Note may
be surrendered for repurchase pursuant to this Section 15.02 by a Holder thereof to the extent such Holder has also
delivered a Repurchase Notice with respect to such Note in accordance with Section 15.01 and not validly
withdrawn such Repurchase Notice in accordance with Section 15.03.
(c) On or before the 20th calendar day after the occurrence of the effective date of a Fundamental
Change, the Company shall provide to all Holders, the Trustee and the Paying Agent (if other than the Trustee) a
written notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the
Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case
of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be
delivered in accordance with the applicable procedures of the Depositary. Simultaneously with
92
providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental
Change Company Notice in a newspaper of general circulation in The City of New York or publish such
information on the Company’s website or through such other public medium as the Company may use at that
time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change and whether such transaction or event is also a
Make-Whole Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article
15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been
delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change
Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’
repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section
15.02.
At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice
shall be prepared by the Company and delivered to the Trustee no later than 2 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the date the Fundamental Change Company Notice is to be sent.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the
option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and
such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting
from a default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it
during the acceleration of the Notes (except in the case of an acceleration resulting from a default by the
93
Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any
instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be
deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental
Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Section 15.03 Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice. A
Repurchase Notice or Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means
of a duly completed written notice of withdrawal delivered to the Paying Agent in accordance with this Section
15.03 at any time prior to the close of business on the second Business Day immediately preceding the
Repurchase Date or prior to the close of business on the second Business Day immediately preceding the
Fundamental Change Repurchase Date, as the case may be, specifying:
(i) the principal amount of the Notes with respect to which such notice of withdrawal is being
submitted, which principal amount must be in principal amounts of US $1,000 or an integral multiple of
US $1,000,
(ii) if Physical Notes have been issued, the certificate numbers of the Note in respect of which
such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Repurchase
Notice or Fundamental Change Repurchase Notice, as the case may be, which portion must be in principal
amounts of US$1,000 or an integral multiple of US$1,000;
provided, however, that if the Notes are Global Notes, the notice must comply with applicable procedures of the
Depositary.
Section 15.04 Deposit of Repurchase Price or Fundamental Change Repurchase Price. (a) The Company
will deposit with the Paying Agent, or if the Company is acting as its own Paying Agent, set aside, segregate and
hold in trust as provided in Section 4.04(b) on or prior to 10:00 a.m., New York City time, on the Repurchase Date
or Fundamental Change Repurchase Date, as the case may be, an amount of money sufficient to repurchase all of
the Notes to be repurchased at the appropriate Repurchase Price or Fundamental Change Repurchase Price.
Subject to receipt of funds and/or Notes by the Paying Agent, payment for Notes surrendered for repurchase (and
not withdrawn in accordance with Section 15.03) will be made on the later of (i) the Repurchase Date or
Fundamental Change Repurchase Date, as the case may be (provided the Holder has satisfied the conditions in
Section 15.01 or Section 15.02, as the case may be) and (ii) the time of book-entry transfer or the delivery of such
Note to the Paying Agent by the Holder thereof in the manner required by Section 15.01 or Section 15.02, as
applicable, by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall
appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee. The Paying Agent shall, promptly
after such payment and upon written demand by the Company, return to the Company any funds in excess of the
Repurchase Price or Fundamental Change Repurchase Price, as the case may be.
94
(b) If by 10:00 a.m., New York City time, on the Repurchase Date or Fundamental Change
Repurchase Date, as the case may be, the Paying Agent holds money sufficient to make payment on all the Notes
or portions thereof that are to be repurchased on such Repurchase Date or Fundamental Change Repurchase Date,
as the case may be, then, with respect to the Notes that have been properly surrendered for repurchase to the
Paying Agent and not validly withdrawn, on such Repurchase Date or Fundamental Change Repurchase Date, as
the case may be, (i) such Notes will cease to be outstanding, (ii) Special Interest, if and to the extent that any such
accrued and unpaid Special Interest exists as of such date, will cease to accrue on such Notes (whether or not
book-entry transfer of the Notes has been made or the Notes have been delivered to the Paying Agent) and (iii) all
other rights of the Holders of such Notes will terminate (other than the right of such Holders to receive the
Repurchase Price or Fundamental Change Repurchase Price, as the case may be and the right of the Holders on
the applicable Special Interest Record Date to receive previously any accrued and unpaid Special Interest upon
delivery or transfer of the Notes to the extent not included in the Fundamental Change Repurchase Price).
(c) Upon surrender of a certificated Note that is to be repurchased in part pursuant to Section 15.01 or
Section 15.2, the Company shall execute and instruct the Trustee who shall authenticate and deliver to the Holder
a new certificated Note in an authorized denomination equal in principal amount to the unrepurchased portion of
the certificated Note surrendered.
Section 15.05 Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with
any repurchase offer, the Company will, if required:
(a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the
Exchange Act;
(b) file a Schedule TO or other required schedule under the Exchange Act; and
(c) otherwise comply with all federal and state securities laws in connection with any offer by the
Company to repurchase the Notes;
in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the
manner specified in this Article 15.
Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to
repurchase, or to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such
an offer in the same manner, at the same time, for the same or greater price and otherwise in compliance with the
requirements for an offer made by the Company as set forth above in this Section 15.05, and such third party
purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the
same time, for the same or greater price and otherwise in compliance with the requirements for an offer made by
the Company as set forth above in this Section 15.05 (including the requirement to pay the Fundamental Change
Repurchase Price on the later of the applicable Fundamental Change Repurchase Date and the time of book-entry
transfer or delivery of the relevant Notes); provided that the Company will continue to be obligated to (i) deliver
the applicable Fundamental Change notice to the holders (which Fundamental Change notice will state that such
third party will
95
make such an offer to purchase the Notes), (ii) comply with applicable securities laws as set forth in this Section
15.05 in connection with any such purchase and (iii) pay the applicable Fundamental Change Repurchase Price on
the later of the applicable Fundamental Change Repurchase Date and the time of book-entry transfer or delivery
of the relevant Notes in the event such third party fails to make such payment in such amount at such time.
Notwithstanding anything to the contrary in this Indenture, to the extent that the provisions of any federal
or state securities laws or other applicable laws or regulations adopted after the date on which the Notes are first
issued conflict with the provisions of this Indenture relating to the Company’s obligations to repurchase the Notes
upon a Fundamental Change, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under such provisions of this Indenture by virtue of such
conflict.
ARTICLE 16
OPTIONAL REDEMPTION
Section 16.01 Optional Redemption for Changes in the Tax Law of the Relevant Taxing Jurisdiction. Other
than as described in Section 16.01 or Section 16.02, the Notes may not be redeemed by the Company at its option
prior to maturity. If the Company has, or on the next Special Interest Payment Date would, become obligated to
pay to the Holder of any Note Additional Amounts, as a result of:
(a) any change or amendment on or after September 24, 2019 or, in the case of a successor, after the
date such successor assumes all of the Company’s obligations under the Notes and this Indenture, or in the case of
a jurisdiction that becomes a Relevant Taxing Jurisdiction on a date that is after September 24, 2019, after such
date upon which such jurisdiction becomes a Relevant Taxing Jurisdiction, in the laws or any rules or regulations
of a Relevant Taxing Jurisdiction; or
(b) any change on or after September 24, 2019 or, in the case of a successor, after the date such
successor assumes all of the Company’s obligations under the Notes and this Indenture, or in the case of a
jurisdiction that becomes a Relevant Taxing Jurisdiction on a date that is after September 24, 2019, after such date
upon which such jurisdiction becomes a Relevant Taxing Jurisdiction, in an interpretation, administration or
application of such laws, rules or regulations by any legislative body, court, governmental agency, taxing authority
or regulatory or administrative authority of such Relevant Taxing Jurisdiction (including the enactment of any
legislation and the announcement or publication of any judicial decision or regulatory or administrative
interpretation or determination); (each, a “Change in Tax Law”), the Company may, at its option, redeem all but
not part of the Notes (except in respect of certain Holders that elect otherwise as described below) at a
“Redemption Price” equal to 100% of the principal amount plus any accrued and unpaid Special Interest, if any,
to, but excluding, the date on which the Notes are redeemed (the “Tax Redemption Date”), including any
Additional Amounts with respect to such Redemption Price (unless the Tax Redemption Date falls after a Special
Interest Record Date but on or prior to the Special Interest Payment Date to which such Special Interest Record
Date relates, in which case the Company shall instead pay on the Special Interest Payment Date the full amount of
any accrued and unpaid Special Interest to the holder of
96
record on such Special Interest Record Date, and the Redemption Price shall be equal to 100% of the principal
amount of the Notes to be purchased); provided that the Company may only redeem the Notes if: (i) the Company
cannot avoid such obligations by taking commercially reasonable measures available to the Company (provided
that changing the jurisdiction of incorporation of the Company shall be deemed not to be a commercially
reasonable measure); and (ii) the Company delivers to the Trustee an opinion of outside legal counsel or a tax
advisor of recognized standing in the Relevant Taxing Jurisdiction and an Officer’s Certificate attesting to such
Change in Tax Law and obligation to pay Additional Amounts and to the Company’s determination that such
obligation cannot be avoided by taking commercially reasonable measures available to the Company.
Notwithstanding anything to the contrary herein, neither the Company nor any successor Person may
redeem any of the Notes in the case that Additional Amounts are payable in respect of PRC withholding tax at the
Applicable PRC Rate or less solely as a result of the Company or its successor Person being considered a PRC tax
resident under the PRC Enterprise Income Tax Law.
If the Tax Redemption Date occurs after a Special Interest Record Date and on or prior to the
corresponding Special Interest Payment Date, the Company shall pay on the Special Interest Payment Date the
full amount of accrued and unpaid Special Interest, if any, due on such Special Interest Payment Date to the record
holder of the Notes on the Special Interest Record Date corresponding to such Special Interest Payment Date, and
the Redemption Price payable to the Holder who presents a Note for redemption shall be equal to 100% of the
principal amount of such Note, including, for the avoidance of doubt, any Additional Amounts with respect to
such Redemption Price.
The Company shall give Holders of Notes (with a copy to the Trustee) not less than 43 Scheduled Trading
Days’ but no more than 60 Scheduled Trading Days’ notice (a “Tax Redemption Notice”) prior to the Tax
Redemption Date. Simultaneously with providing such notice, which will include the Redemption Price, the Tax
Redemption Date and the Settlement Method that will apply to all conversions with a Conversion Date that occurs
on or after the date the Company sends such notice of redemption and before the close of business on the second
Business Day immediately before the related Tax Redemption Date, the Company shall publish a notice
containing this information in a newspaper of general circulation in The City of New York or publish the
information on the Company’s website or through such other public medium as the Company may use at that
time. The Tax Redemption Date must be a Business Day and cannot fall after the Maturity Date.
Upon receiving such notice of redemption, each Holder shall have the right to elect to not have its Notes
redeemed, in which case the Company shall not be obligated to pay any Additional Amounts on any payment with
respect to such Notes solely as a result of such Change in Tax Law that resulted in the obligation to pay such
Additional Amounts (whether upon conversion, required repurchase, maturity or otherwise, and whether in cash,
ADSs, or a combination thereof, Reference Property or otherwise) after the Tax Redemption Date (or, if the
Company fails to pay the Redemption Price on the Tax Redemption Date, such later date on which the Company
pays the Redemption Price), and all future payments with respect to such Notes shall be subject to the deduction
or withholding of such Relevant Taxing Jurisdiction and
97
taxes required by law to be deducted or withheld as a result of such Change in Tax Law; provided that,
notwithstanding the foregoing, if a Holder electing not to have its Notes redeemed converts its Notes in
connection with the Company’s election to redeem the Notes in respect of such Change in Tax Law pursuant to
Section 14.03(g), the Company shall be obligated to pay Additional Amounts, if any, with respect to such
conversion.
Subject to the applicable procedures of DTC in the case of Global Notes, a Holder electing to not have its
Notes redeemed must deliver to the Company, with a copy to the Paying Agent a written notice of election so as to
be received by the Company and the Paying Agent or otherwise by complying with the requirements for
conversion in Section 14.02(b) prior to the close of business on the second Business Day immediately preceding
the Tax Redemption Date. A Holder may withdraw any notice of election (other than such a deemed notice of
election in connection with a conversion) by delivering to the Company and the Paying Agent a written notice of
withdrawal prior to the close of business on the Business Day immediately preceding the Tax Redemption Date
(or, if the Company fails to pay the Redemption Price on the Tax Redemption Date, such later date on which the
Company pays the Redemption Price). If no election is made, the Holder shall have its Notes redeemed without
any further action.
No Notes may be redeemed if the principal amount of the Notes has been accelerated, and such
acceleration has not been rescinded, on or prior to such date.
Section 16.02 Optional Redemption by the Company. The Company may not redeem the Notes prior to
October 1, 2022, except under the circumstances described in Section 16.01.
(a) On or after October 1, 2022, the Company may redeem for cash all or part of the Notes, at its
option, if the Last Reported Sale Price of the ADSs has been at least 130% of the Conversion Price then in effect
on (i) each of at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading
Days ending on, and including, the Trading Day immediately prior to the date the Company provides notice of
redemption and (ii) the Trading Day immediately preceding the date the Company sends such notice.
(b) In case the Company exercises its option to redeem all or, as the case may be, any part of the Note,
it shall fix a date for redemption (the “Optional Redemption Date”) and shall give the Holders, Trustee,
Conversion Agent and Paying Agent not less than 43 Scheduled Trading Days’ but no more than 60 Scheduled
Trading Days’ notice (an “Optional Redemption Notice” and, together with the Tax Redemption Notice, a
“Redemption Notice”) prior to the Optional Redemption Date, and the Redemption Price will be equal to 100%
of the principal amount of the Notes to be redeemed, plus any accrued and unpaid Special Interest to, but
excluding, the Optional Redemption Date (unless the Optional Redemption Date falls after a Special Interest
Record Date but on or prior to the immediately succeeding Special Interest Payment Date, in which case the
Company shall pay on the Special Interest Payment Date the full amount of any accrued and unpaid Special
Interest to the holder of record as of the close of business on such Special Interest Record Date, and the
Redemption Price shall be equal to 100% of the principal amount of the Notes to be redeemed). The Optional
Redemption Date must be a Business Day. The Company shall send to each Holder written notice of the
redemption containing certain information set forth in this Indenture, including:
98
(i) the Optional Redemption Date;
(ii) the Redemption Price;
(iii) the Settlement Method that will apply to all conversions with a Conversion Date that
occurs on or after the date the Company sends such notice of redemption and before the close of business
on the second Business Day immediately before the related Optional Redemption Date.
(iv) that on the Optional Redemption Date, the Redemption Price will become due and payable
upon each Note to be redeemed, and that Special Interest thereon, if any, shall cease to accrue on and after
the Optional Redemption Date unless the Company defaults in the payment of the Redemption Price;
(v) the place or places where the Notes subject to such redemption are to be surrendered for
payment of the Redemption Price;
(vi) that Holders may surrender Notes for conversion at any time prior to the close of business
on the second Business Day prior to the Optional Redemption Date (unless the Company fails to pay the
Redemption Price, in which case a Holder of Notes may convert such Notes until the Business Day
immediately preceding the date on which the Redemption Price has been paid or duly provided for);
(vii) the Conversion Rate and, if applicable, the number of Additional ADSs added to the
Conversion Rate in accordance with Section 14.03;
(viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes and that no
representation is made as to the correctness or accuracy of the CUSIP or ISIN number listed in such notice
or printed on the Notes; and
(ix) in case any Note is to be redeemed in part only, the portion of the principal amount thereof
to be redeemed, and that upon surrender of such Note, a new Note in principal amount equal to the
unredeemed portion thereof shall be issued.
An Optional Redemption Notice shall be irrevocable. At the Company’s prior written request, the Trustee
shall give the Optional Redemption Notice in the Company’s name and at its expense; provided, however, that the
Company shall have delivered to the Trustee not later than the close of business five Business Days prior to the
date the Notice of Redemption is to be sent (unless a shorter period shall be satisfactory to the Trustee), an
Officer’s Certificate and a Company Order requesting that the Trustee give such Optional Redemption Notice
together with the Optional Redemption Notice to be given setting forth the information to be stated therein as
provided in the preceding paragraph. The Optional Redemption Notice, if given in the manner herein provided,
shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any
case, failure to give such Optional Redemption Notice or any defect in the Optional Redemption Notice to the
Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings
for the Optional Redemption of any other Note.
99
If the Company decides to redeem fewer than all of the outstanding Notes, the Trustee will select the Notes
to be redeemed (in principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis or by another
method the Trustee considers to be fair and appropriate and, in the case of a Global Note, in accordance with, and
subject to, DTC’s applicable procedures.
If the Trustee selects a portion of a Holder’s Notes for partial redemption and such Holder converts a
portion of such Notes, the converted portion shall be deemed to be from the portion selected for redemption. In
the event of any redemption in part, the Company shall not be required to register the transfer of or exchange any
Note so selected for redemption, in whole or in part, except the unredeemed portion of any such Note being
redeemed in part.
No Notes may be redeemed if the principal amount of the Notes has been accelerated, and such
acceleration has not been rescinded, on or prior to the Optional Redemption Date (except in the case of an
acceleration resulting from a default by the Company in the payment of the Redemption Price with respect to such
Notes).
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01 Provisions Binding on Company’s Successors. All the covenants, stipulations, promises
and agreements of the Company contained in this Indenture shall bind its successors and assigns whether so
expressed or not.
Section 17.02 Official Acts by Successor Corporation. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or Officer of the Company
shall and may be done and performed with like force and effect by the like board, committee or officer of any
corporation or other entity that shall at the time be the lawful sole successor of the Company.
Section 17.03 Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders on the Company shall be deemed to
have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed (until another address is filed by the Company
with the Trustee) to PINDUODUO INC., 28/F, No. 533 Loushanguan Road, Changning District, Shanghai,
200051, People’s Republic of China. Any notice, direction, request or demand hereunder to or upon the Paying
Agent shall be deemed to have been given or made by being deposited postage prepaid by registered or certified
mail in a post office letter box addressed to the Paying Agent Office or sent electronically in PDF format. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been given or made
by being deposited postage prepaid by registered or certified mail in a post office letter box addressed to the
Corporate Trust Office or sent electronically in PDF format. Notwithstanding any other provision of the Indenture,
notices to the Trustee shall only be deemed received upon actual receipt thereof by a Responsible Officer.
So long as and to the extent that the Notes are represented by Global Notes and such Global Notes are held
by DTC, notices to owners of beneficial interests in the global notes may
100
be given by delivery of the relevant notice to DTC for communication by it to entitled account holders.
The Trustee, by notice to the Company, may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication delivered to a Holder shall be mailed to it by first class mail, postage
prepaid, at its address as it appears on the Note Register or delivered by electronic mail and shall be sufficiently
given to it if so delivered within the time prescribed.
Failure to mail or deliver a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed or delivered in the manner
provided above, it is duly given, whether or not the addressee receives it.
Section 17.04 Governing Law; Jurisdiction. THIS INDENTURE AND EACH NOTE, AND ANY
CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND
EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF).
The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the
Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or
any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of
the State of New York or the courts of the United States located in the Borough of Manhattan, New York City,
New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and
revenues.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings
arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of
the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
Section 17.05 Submission to Jurisdiction; Service of Process. The Company irrevocably appoints Law
Debenture Corporate Services Inc., 801 2nd Avenue, Suite 403, New York, New York 10017, as its authorized
agent in the Borough of Manhattan in the City of New York upon which process may be served in any such suit or
proceeding, and agrees that service of process upon such agent, and written notice of said service to the Company
by the person serving the same to PINDUODUO INC., 28/F, No. 533 Loushanguan Road, Changning District,
Shanghai, 200051, People’s Republic of China, shall be deemed in every respect effective service of process upon
the Company in any such suit or proceeding. The Company further agrees to take any and all action as may be
necessary to maintain such designation and appointment of such
101
agent in full force and effect for a period of five and a half years from the date of this Indenture. If for any reason
such agent shall cease to be such agent for service of process, the Company shall forthwith appoint a new agent of
recognized standing for service of process in the State of New York and deliver to the Holders and the Trustee a
copy of the new agent’s acceptance of that appointment within ten Business Days of such acceptance. Nothing
herein shall affect the right of the Trustee, any Agent or any Holder to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against the Company in any other court
of competent jurisdiction. To the extent that the Company has or hereafter may acquire any sovereign or other
immunity from jurisdiction of any court or from any legal process with respect to itself or its property, the
Company irrevocably waives such immunity in respect of its obligations hereunder or under any Note.
Section 17.06 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel
to Trustee. Upon any application or demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee an Officer’s
Certificate and an Opinion of Counsel stating that such action is permitted by the terms of this Indenture.
Each Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the Company in this
Indenture and delivered to the Trustee with respect to compliance with this Indenture (other than the Officer’s
Certificates provided for in Section 4.09) shall include (a) a statement that the person signing such certificate is
familiar with the requested action and this Indenture; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement contained in such certificate is based; (c) a statement that,
in the judgment of such person, he or she has made such examination or investigation as is necessary to enable
him or her to express an informed judgment as to whether or not such action is permitted by this Indenture; and
(d) a statement as to whether or not, in the judgment of such person, such action is permitted by this Indenture and
that all covenants and conditions precedent in the Indenture have been complied with.
Notwithstanding anything to the contrary in this Section 17.06, if any provision in this Indenture
specifically provides that the Trustee shall or may receive an Opinion of Counsel in connection with any action to
be taken by the Trustee or the Company hereunder, the Trustee shall be entitled to such Opinion of Counsel.
Section 17.07 Legal Holidays. In any case where any Special Interest Payment Date, Fundamental Change
Repurchase Date, Repurchase Date, Conversion Date, Tax Redemption Date, Optional Redemption Date or
Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but
may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no
Special Interest, if and to the extent any Special Interest is otherwise payable on such date, shall accrue in respect
of the delay.
Section 17.08 No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or
implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction.
102
Section 17.09 Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall
give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any Note
Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 17.10 Table of Contents, Headings, Etc. The table of contents and the titles and headings of the
articles and sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 17.11 Execution in Counterparts. This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be
their original signatures for all purposes.
Section 17.12 Severability. In the event any provision of this Indenture or in the Notes shall be invalid,
illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the
remaining provisions shall not in any way be affected or impaired.
Section 17.13 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17.14 Force Majeure. In no event shall the Trustee or the Agents be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being understood that
the Trustee or the Agents, as the case may be, shall use reasonable efforts that are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 17.15 Calculations. Except as otherwise provided herein, the Company shall be responsible for
making all calculations called for under the Notes or in connection with a conversion. These calculations include,
but are not limited to, determinations of the Last Reported Sale Prices of the ADSs, the Daily VWAPs, the Daily
Conversion Values, the Daily Settlement Amounts, any accrued Special Interest payable on the Notes and the
Conversion Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest
error, the Company’s calculations shall be final and binding on Holders. The Company shall provide a schedule of
its calculations to each of the Trustee, the Paying Agent and the
103
Conversion Agent, and each of the Trustee, the Paying Agent and the Conversion Agent is entitled to rely
conclusively and without liability upon the accuracy of the Company’s calculations without independent
verification. The Trustee will forward the Company’s calculations to any registered Holder of Notes upon the
written request of that Holder at the sole cost and expense of the Company.
Section 17.16 USA PATRIOT Act. In order to comply with the laws, rules, regulations and executive
orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to
the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the
United States (“Applicable AML Law”), the Trustee is required to obtain, verify, record and update certain
information relating to individuals and entities which maintain a business relationship with the Trustee.
Accordingly, each of the parties agree to provide to the Trustee, upon its request from time to time such
identifying information and documentation as may be available for such party in order to enable the Trustee to
comply with Applicable AML Law.
[Remainder of page intentionally left blank]
104
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date
first written above.
PINDUODUO INC.
By: /s/ Zheng Huang
Name: Zheng Huang
Title: Chairman of the Board of Directors and Chief Executive
Officer
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By: /s/ Robert S. Peschler
Name: Robert S. Peschler
Title: Vice President
By: /s/ Jacqueline Bartnick
Name: Jacqueline Bartnick
Title: Director
[FORM OF FACE OF NOTE]
[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]
EXHIBIT A
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]
[THIS SECURITY, THE AMERICAN DEPOSITARY SHARES DELIVERABLE UPON CONVERSION
OF THIS SECURITY, IF ANY, AND THE CLASS A ORDINARY SHARES REPRESENTED THEREBY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
‘‘SECURITIES ACT’’), ARE ‘‘RESTRICTED SECURITIES’’ WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT OR CONTRACTUALLY RESTRICTED SECURITIES, AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS (a) A
‘‘QUALIFIED INSTITUTIONAL BUYER’’ (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) OR (b) LOCATED OUTSIDE THE UNITED STATES AND NOT A U.S. PERSON
(WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT
AND THAT IT AND ANY SUCH ACCOUNT IS NOT, AND HAS NOT BEEN FOR THE
IMMEDIATELY PRECEDING THREE MONTHS, AN AFFILIATE OF PINDUODUO INC. (THE
‘‘COMPANY’’), AND
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY, THE AMERICAN DEPOSITARY
SHARES DELIVERABLE UPON CONVERSION OF THIS SECURITY AND THE CLASS A
ORDINARY SHARES REPRESENTED THEREBY, OR ANY BENEFICIAL INTEREST HEREIN
PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL
ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
A-1
RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, OR
(D) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE).
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE,
THE COMPANY, THE DEPOSITARY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS
BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY
OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY DURING THE THREE IMMEDIATELY PRECEDING MONTHS MAY
PURCHASE, OTHERWISE ACQUIRE OR OWN THIS NOTE OR, THE AMERICAN DEPOSITARY
SHARES DELIVERABLE UPON CONVERSION HEREOF AND THE CLASS A ORDINARY SHARES
REPRESENTED THEREBY, A BENEFICIAL INTEREST HEREIN.]
A-2
PINDUODUO INC.
0% Convertible Senior Note due 2024
No. [_________]
CUSIP No. [_________]
ISIN No. [_________]
[Initially] US$[_________]
1
Pinduoduo Inc., a company duly organized and validly existing under the laws of the Cayman Islands (the
“Company,” which term includes any successor company or corporation or other entity under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.] [_____))] , or
registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto] [of
US$[___________]] , which amount, taken together with the principal amounts of all other outstanding Notes,
shall not, unless permitted by the Indenture, exceed US$1,000,000,000 in aggregate at any time, in accordance
with the rules and procedures of the Depositary, on October 1, 2024, and any Special Interest thereon as set forth
below.
2
5
4
3
This Note shall bear no regular cash interest, and the principal amount of this Note shall not accrete. Any
interest on this Note shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for
partial months, on the basis of the number of days actually elapsed in a 30-day month. Special Interest, if any, is
payable semi-annually in arrears on each April 1 and October 1, commencing on April 1, 2020 (if Special Interest
is then payable), to Holders of record at the close of business on the preceding March 15 and September 15
(whether or not such day is a Business Day), respectively. Special Interest will be payable as set forth in Section
4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or
in respect of, any Note therein shall be deemed to include Special Interest if, in such context, Special Interest is,
was or would be payable pursuant to any of such Section 4.06(d), Section 4.06(e) and Section 6.03, or any interest
on any Defaulted Amounts payable as set forth in Section 2.03(c) in the within-mentioned Indenture.
Any Defaulted Amounts shall not accrue interest unless Special Interest was payable on the required
payment date, in which case such payment shall accrue interest per annum at the then-applicable Special Interest
rate, subject to the enforceability thereof under applicable law, from, and including, the relevant payment date to,
but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in
accordance with Section 2.03(c) of the Indenture.
1
Include if a Global Note.
2
Include if a Global Note.
3
Include if a Physical Note.
4
Include if a Global Note.
5
Include if a Physical note.
A-3
The Company shall pay the principal of and Special Interest on this Note, if and so long as such Note is a
Global Note, by wire transfer in immediately available funds to the Depositary or its nominee, as the case may be,
as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company
shall pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by
the Company for that purpose. The Company has initially designated Deutsche Bank Trust Company Americas as
its Paying Agent, Conversion Agent and Note Registrar in respect of the Notes and the Paying Agent Office as a
place where Notes may be presented for payment or for registration of transfer.
Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without
limitation, provisions giving the Holder of this Note the right to convert this Note into cash, ADSs or a
combination of cash and ADSs, as applicable, on the terms and subject to the limitations set forth in the Indenture.
Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note, and any claim, controversy or dispute arising under or related to this Note, shall be
construed in accordance with and governed by the laws of the State of New York (without regard to the
conflicts of laws provisions thereof).
In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall
control and govern.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication
hereon shall have been signed manually by the Trustee under the Indenture.
[Remainder of page intentionally left blank]
A-4
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
PINDUODUO INC.
By:
Name:
Title:
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.
By:
By:
Authorized signatory
Authorized signatory
A-5
[FORM OF REVERSE OF NOTE]
PINDUODUO INC.
0% Convertible Senior Note due 2024
This Note is one of a duly authorized issue of Notes of the Company, designated as its 0% Convertible
Senior Notes due 2024 (the “Notes”), initially limited to the aggregate principal amount of US$1,000,000,000, all
issued or to be issued under and pursuant to an Indenture dated as of September 27, 2019 (the “Indenture”),
between the Company and Deutsche Bank Trust Company Americas (the “Trustee”), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes.
Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified
in the Indenture. The Rule 144A Notes and the Regulation S Notes initially have separate CUSIP numbers and
will initially not be fungible.
In case certain Events of Default, as defined in the Indenture, shall have occurred and be continuing, the
principal of, and any Special Interest on, all Notes may be declared, by either the Trustee or Holders of at least
25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the
Indenture. In case certain Events of Default relating to a bankruptcy (or similar proceeding) with respect to the
Company or a Significant Subsidiary of the Company shall have occurred, the principal of, and any Special
Interest on, all Notes shall automatically become immediately due and payable, as set forth in the Indenture.
Subject to the terms and conditions of the Indenture, the Company will make all payments in respect of the
principal amount on the Maturity Date, the Redemption Price, the Repurchase Price and the Fundamental Change
Repurchase Price, as the case may be, to the Holder who surrenders a Note to the Paying Agent to collect such
payments in respect of the Note. The Company will pay cash amounts in money of the United States that at the
time of payment is legal tender for payment of public and private debts.
Subject to the terms and conditions of the Indenture, Additional Amounts will be paid in connection with
any payments made and deliveries caused to be made by the Company or any successor to the Company under or
with respect to the Indenture and the Notes, including, but not limited to, payments of principal (including, if
applicable the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price), payments
of Special Interest, if any, and the payment of cash and/or deliveries of ADSs (together with payments for any
fractional ADS) upon conversion of the Notes to ensure that the net amount received by the beneficial owner after
any applicable withholding or deduction (and after deducting any taxes on the Additional Amounts) will equal the
amount that would have been received by such beneficial owner had no such withholding or deduction been
required.
The Indenture contains provisions permitting the Company and the Trustee in certain circumstances,
without the consent of the Holders of the Notes, and in certain other circumstances, with the consent of the
Holders of not less than a majority in aggregate principal
A-6
amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures modifying the terms of the Indenture and the Notes as described therein. It is also provided in the
Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes
at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of
Default under the Indenture and its consequences.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay or cause to be delivered, as the case
may be, the principal (including the Redemption Price, the Repurchase Price and the Fundamental Change
Repurchase Price, if applicable) of, any accrued and unpaid Special Interest, if any, on, and the consideration due
upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money or ADSs, as
the case may be, herein prescribed.
The Notes are issuable in registered form without coupons in minimum denominations of US$1,000
principal amount and integral multiples of US$1,000 in excess thereof. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes
may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without
payment of any service charge but, if required by the Company or Trustee, with payment of a sum sufficient to
cover any transfer or similar tax that may be imposed in connection therewith as a result of the name of the Holder
of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old
Notes surrendered for such exchange.
The Company may not redeem the Notes prior to October 1, 2022, except in the event of certain Changes
in Tax Law as described in Section 16.01 of the Indenture. The Notes shall be redeemable at the Company’s
option in certain circumstances on or after October 1, 2022 in accordance with the terms and subject to the
conditions specified in the Indenture. No sinking fund is provided for the Notes, which means that the Company is
not required to redeem or retire the Notes periodically.
The Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of
such Holder’s Notes or any portion thereof (in principal amounts of US$1,000 or integral multiples thereof) on the
Repurchase Date at a price equal to the Repurchase Price.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option, to
require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal
amounts of US$1,000 or integral multiples thereof) on the Fundamental Change Repurchase Date at a price equal
to the Fundamental Change Repurchase Price.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain
periods and upon the occurrence of certain conditions specified in the Indenture, prior to the close of business on
the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion
thereof that is US$1,000 or an integral multiple thereof, into cash, ADSs or a combination of cash and ADSs, as
applicable, at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the
Indenture.
A-7
Terms used in this Note and defined in the Indenture are used herein as therein defined.
A-8
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as
though they were written out in full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also
be used though not in the above list.
A-9
SCHEDULE OF EXCHANGES OF NOTES
PINDUODUO INC.
0% Convertible Senior Notes due 2024
SCHEDULE A
6
The initial principal amount of this Global Note is [_______] UNITED STATES DOLLARS
(US$[_________]). The following increases or decreases in this Global Note have been made:
Amount of
decrease in
principal amount
of this Global
Note
Amount of
increase in
principal amount
of this Global
Note
Principal amount
of this Global
Note following
such decrease or
increase
Signature of
authorized
signatory of
Trustee
Date of
exchange
6
Include if a global note.
A-10
[FORM OF NOTICE OF CONVERSION]
ATTACHMENT 1
To: PINDUODUO INC.
28/F, No. 533 Loushanguan Road
Changning District
Shanghai, 200051
The People’s Republic of China
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Conversion Agent
Deutsche Bank Trust Company Americas
c/o DB Services Americas, Inc., Attn: Reorg Dept.
5022 Gate Parkway, Suite 200, Jacksonville, FL 32256
Ref: Cusip [•], Pinduoduo Inc.
Tel: +1-877-843-9767, Email: db.reorg@db.com
Fax: +1-615-866-3889
DEUTSCHE BANK TRUST COMPANY AMERICAS, as ADS Depositary
60 Wall Street
New York, NY 10005
United States of America
Fax: +1-732-544-6346, Email: adr@db.com
The undersigned registered holder of this Note hereby exercises the option to convert that Note or the portion
thereof (that is US$1,000 principal amount or an integral multiple thereof) below designated, into cash, ADSs or a
combination of cash and ADSs, as applicable, in accordance with the terms of the Indenture referred to in this Note, and
directs that any cash payable and ADSs deliverable upon such conversion, together with any cash payable for any Fractional
ADS, and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered Holder
hereof unless a different name has been indicated below. Terms defined in the Unrestricted Deposit Agreement, the
Restricted Deposit Agreement or the Indenture referred to in this Notice are used herein as so defined. If any ADSs or any
portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will
pay all documentary, stamp, issue, transfer or similar taxes, if any, in accordance with Section 14.02(d) and Section 14.02 (e)
of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this Notice.
In connection with the conversion of this Note, or the portion hereof below designated, the undersigned
acknowledges, represents to and agrees with the Company that the undersigned is not an “affiliate” (as defined in Rule 144
under the Securities Act) of the Company and has not been an “affiliate” (as defined in Rule 144 under the Securities Act)
during the three months immediately preceding the date hereof.
[The undersigned further certifies:
1. The undersigned acknowledges (and if the undersigned is acting for the account of another person, that
person has confirmed that it acknowledges) that the Restricted Securities received upon conversion of this Note (or securities
represented thereby) have not been and are not expected to be registered under the Securities Act.
2. The undersigned further certifies that either:
1
(a) The undersigned is, and at the time ADSs are delivered in conversion of its Notes will be,
the holder of the ADSs and the Ordinary Shares represented thereby, and (i) the undersigned is not a U.S. person
(as defined in Regulation S under the Securities Act) and is located outside the United States (within the meaning
of Regulation S) and acquired, or have agreed to acquire and will have acquired, the Notes being converted and
the ADSs and the Ordinary Shares represented thereby being delivered in the conversion outside the United States
and (ii) the undersigned is not in the business of buying and selling securities or, if the undersigned is in such
business, the undersigned did not acquire the Notes being converted from the Company or any affiliate thereof in
the initial distribution of the Notes.
OR
(b) The undersigned is a broker-dealer acting on behalf of its customer; its customer has
confirmed to the undersigned that it is, and at the time ADSs are delivered in conversion of the said Notes will be,
the holder of the ADSs and the Ordinary Shares represented thereby, and (i) it is not a U.S. person (as defined in
Regulation S under the Securities Act) and it is located outside the United States (within the meaning of
Regulation S) and acquired, or have agreed to acquire and will have acquired, the Notes being converted and the
ADSs and the Ordinary Shares represented thereby being delivered in the conversion outside the United States
and (ii) it is not in the business of buying and selling securities or, if it is in such business, it did not acquire the
Notes being converted from the Company or any affiliate thereof in the initial distribution of the Notes.
OR
(b) The undersigned is a qualified institutional buyer (as defined in Rule 144A under the
Securities Act) acting for its own account or for the account of one or more qualified institutional buyers and the
undersigned is (or such account or accounts are) the sole beneficial owner(s) of the ADSs to be received upon
conversion of the Notes.
3. The undersigned acknowledges that the undersigned (and any such other account) may not
continue to hold or retain any interest in Conversion ADSs if the undersigned (or such other account) becomes an
Affiliate of the Company.
4. The undersigned agrees (and if the undersigned is acting for the account of another person, that person has
confirmed that it agrees) that, prior to the Resale Restriction Termination Date, the undersigned (and such other account) will
not offer, sell, pledge or otherwise transfer the Restricted Security (or securities represented by such Restricted Security)
except in accordance with the restrictions set forth in that legend and any applicable securities laws of the United States and
any state thereof. ]
7
The undersigned hereby instructs the ADS Depositary to register the ADSs in the name of:
1.
2.
3.
Name of Beneficial Owner to receive ADSs (English):
Address of Beneficial Owner to receive ADSs (English):
Name of Registered Holder of the Deposited Shares:
7
Include if a Restricted Security.
2
________________________
________________________
________________________
4.
5.
6.
7.
Number of Deposited Shares:
Number of ADSs to be issued:
Beneficial Owner’s Tax ID Number:
Contact Name and Tel No/email address:
________________________
________________________
________________________
________________________
[The undersigned instructs the Depositary to deliver the ADRs representing the ADSs to the following account:
ADS Receiving Broker ( * are mandatory fields):
OR
ADS Delivering Party:
a) DTC Broker Name*:
b) DTC Broker’s Participant Account with DTC *:
c) DTC Broker Contact Name:
d) DTC Broker Contact Tel No/email:
e) Beneficial Owner’s Account # with DTC Broker*:
________________________
________________________
________________________
________________________
________________________
e) Local Broker Name (have account with DTC Broker)*:
Local Broker Sub-Account # with DTC Broker*:
Local Broker Contact Name:
Local Broker Contact Tel No/email:
________________________
________________________
________________________
________________________
Name:
Deutsche Bank Trust Company Americas
DTC Account: #2655]
8
For any ADS settlement inquiries, please contact DBTCA Broker Desk:
Tel: +1-212-250-9100 (New York) / +44-207-547-6500 (London)
Email: adr@db.com
8
Include bracketed language in the conversion Notice if the Note being converted is not a Restricted Security.
3
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks,
stock brokers, savings and loan
associations and credit unions) with
membership in an approved signature
guarantee medallion program pursuant to
Securities and Exchange Commission
Rule 17Ad-15 if ADSs are to be issued,
or Notes are to be delivered, other than to
and in the name of the registered holder.
Fill in for registration of ADSs if to be
issued, and Notes if to be delivered,
other than to and in the name of the
registered holder:
(Name)
(Street)
(Address)
(City, State and Zip Code )
Please print name and address
4
Principal amount to be converted (if less than all):
US$_________,000
NOTICE: The above signature(s) of the Holder(s)
hereof must correspond with the name as written upon
the face of the Note in every particular without
alteration or enlargement or any change whatever.
__________________________
Social Security or Other Taxpayer
Identification Number
5
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
ATTACHMENT 2
To: PINDUODUO INC.
Deutsche Bank Trust Company Americas, as Paying Agent
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Pinduoduo
Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying
the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the registered holder
hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of
this Note, or the portion thereof (that is US$1,000 principal amount or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Special
Interest Record Date and on or prior to the corresponding Special Interest Payment Date, accrued and unpaid
Special Interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date.
In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
Certificate Number(s):
Dated:
Signature Guarantee
Signature(s) must be guaranteed
by an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 if ADSs
are to be issued, or Notes are to be
delivered, other than to and in the
name of the registered holder.
Signature(s)
1
Fill in for registration of ADSs if
to be issued, and Notes if to be
delivered, other than to and in the
name of the registered holder:
(Name)
(Street Address)
(City, State and Zip Code)
Please print name and address
Social Security or Other Taxpayer
Identification Number
Principal amount to be converted (if less than all):
US$_______,000
NOTICE: The above signature(s) of the Holder(s)
hereof must correspond with the name as written
upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
2
ATTACHMENT 3
[FORM OF REPURCHASE NOTICE]
To: Pinduoduo Inc.
Deutsche Bank Trust Company Americas, as Paying Agent
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Pinduoduo
Inc. (the “Company”) regarding the right of Holders to elect to require the Company to repurchase the entire
principal amount of this Note, or the portion thereof (that is US$1,000 principal amount or an integral multiple
thereof) below designated, in accordance with the applicable provisions of the Indenture referred to in this Note,
at the Repurchase Price to the registered Holder hereof.
In the case of certificated Notes, the certificate numbers of the Notes to be purchased are as set forth
below:
Certificate Number(s):
Dated:
Signature(s)
Social Security or Other Taxpayer
Identification Number
Principal amount to be converted (if less than all):
US$_______,000
NOTICE: The above signature(s) of the Holder(s)
hereof must correspond with the name as written
upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
1
ATTACHMENT 4
To: Deutsche Bank Trust Company Americas, as Trustee and Note Registrar
[FORM OF ASSIGNMENT AND TRANSFER]
For value received _______________hereby sell(s), assign(s) and transfer(s) unto ____________ (Please insert
social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes
and appoints attorney to transfer the said Note on the books of the Company, with full power of substitution
in the premises.
In connection with any transfer of the within Note occurring prior to the Resale Restriction Termination Date, as
defined in the Indenture governing such Note, the undersigned confirms that such Note is being transferred:
☐ To Pinduoduo Inc. or a subsidiary thereof; or
☐ Pursuant to a registration statement that has become or been declared effective under the Securities Act of
1933, as amended; or
☐ Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended [(“Rule
144A”), and the undersigned confirms that the undersigned reasonably believes that the transferee of such Note is
a “qualified institutional buyer” (within the meaning of Rule 144A) that is purchasing for its own account or for
the account of another qualified institutional buyer and the undersigned has provided such transferee notice that
the transfer is being made in reliance on Rule 144A] ; or
9
☐ Outside the United States in accordance with Regulation S under the Securities Act of 1933, as amended;
or
☐ Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended (if available).
9
Include if Regulation S Note.
1
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered,
other than to and in the name of the registered holder.
NOTICE: The signature on the assignment must correspond with the name as written upon the face of the Note in
every particular without alteration or enlargement or any change whatever.
2
Exhibit 2.6
Description of rights of each class of securities
registered under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”)
Class A ordinary shares, par value US$0.000005 per share, of Pinduoduo Inc. (“we,” “our,” “our
company,” or “us”) are registered under Section 12(b) of the Exchange Act, and our American depositary shares
(“ADSs”), each representing four Class A ordinary shares, are listed and traded on the Nasdaq Global Select
Market. This exhibit contains a description of the rights of (i) the holders of Class A ordinary shares and (ii) the
holders of ADSs. Class A ordinary shares underlying the ADSs are held by Deutsche Bank Trust Company
Americas, as depositary, and holders of ADSs will not be treated as holders of the Class A ordinary shares.
Description of Class A Ordinary Shares
The following is a summary of material provisions of our currently effective amended and restated
memorandum and articles of association (the “Memorandum and Articles of Association”), as well as the
Companies Law (as amended) of the Cayman Islands (the “Companies Law”) insofar as they relate to the material
terms of our ordinary shares. Notwithstanding this, because it is a summary, it may not contain all the information
that you may otherwise deem important. For more complete information, you should read our Memorandum and
Articles of Association, which has been filed with the SEC as an exhibit to our Registration Statement on Form F-
1 (File No. 333- 226014).
Type and Class of Securities (Item 9.A.5 of Form 20-F)
Each Class A ordinary share has US$0.000005 par value. The number of Class A ordinary shares that have
been issued as of the last day of the financial year ended December 31, 2019 is provided on the cover of the
annual report on Form 20-F filed on April 24, 2020 (the “2019 Form 20-F”). Our Class A ordinary shares may be
held in either certificated or uncertificated form.
Preemptive Rights (Item 9.A.3 of Form 20-F)
Our shareholders do not have preemptive rights.
Limitations or Qualifications (Item 9.A.6 of Form 20-F)
We have a dual-class voting structure such that our ordinary shares consist of Class A ordinary shares and
Class B ordinary shares. Each Class A ordinary share shall entitle the holder thereof to one vote on all matters
subject to the vote at general meetings of our company, and each Class B ordinary share shall entitle the holder
thereof to ten (10) votes on all matters subject to the vote at general meetings of our company. Due to the super
voting power of Class B ordinary share holder, the voting power of the Class A ordinary shares may be materially
limited.
Rights of Other Types of Securities (Item 9.A.7 of Form 20-F)
Not applicable.
Rights of Class A Ordinary Shares (Item 10.B.3 of Form 20-F)
Conversion
Each Class B ordinary share is convertible into one Class A ordinary share at any time by the holder
thereof. Class A ordinary shares are not convertible into Class B ordinary shares under any circumstances. Upon
any sale of Class B ordinary shares by a holder thereof to any person other than Mr. Zheng Huang or any entity
which is not ultimately controlled by Mr. Zheng Huang, such Class B ordinary shares shall be automatically and
immediately converted into the same number of Class A ordinary shares.
Dividends
The holders of our ordinary shares are entitled to such dividends as may be declared by our board of
directors. Under the laws of the Cayman Islands, our company may declare and pay a dividend out of either profit
or share premium account, provided that in no circumstances may a dividend be paid if this would result in our
company being unable to pay its debts as they fall due in the ordinary course of business.
Voting Rights
Our Class A ordinary shares and Class B ordinary shares vote together as a single class on all matters
submitted to a vote of our shareholders, except as may otherwise be required by law or provided for in our
memorandum and articles of association. In respect of matters requiring shareholders’ vote, each Class A ordinary
share is entitled to one vote, and each Class B ordinary share is entitled to ten votes. At any general meeting a
resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the
declaration of the result of the show of hands) demanded by the chairman.
A quorum required for a meeting of shareholders consists of one or more shareholders holding not less
than a majority of all votes attaching to all of our shares in issue and entitled to vote present in person or by proxy
or, if a corporation or other non-natural person, by its duly authorized representative. Advance notice of at least
ten calendar days is required for the convening of our annual general meeting and other shareholders meetings.
An ordinary resolution to be passed at a meeting by the shareholders requires the affirmative vote of a
simple majority of the votes attaching to the ordinary shares cast at a meeting. A special resolution requires the
affirmative vote of no less than two-thirds of the votes cast attaching to the outstanding shares at a meeting. Our
articles of association provide that a special resolution shall be required, and that for the purposes of any such
special resolution, the affirmative vote of no less than 95% of votes cast by the shareholders entitled to vote who
are present in person or by proxy at a general meeting shall be required to approve any amendments to any
provisions of our articles of association that relate to or have an impact upon: (i) the right of the Pinduoduo
Partnership to appoint executive directors and nominate and recommend chief executive officer of our company
and (ii) the procedures regarding the election, appointment and removal of directors or size of the board. Both
ordinary resolutions and special resolutions may also be passed by a unanimous written resolution signed by all
the shareholders of our company, as permitted by the Companies Law and our memorandum and articles of
association. A special
2
resolution will be required for important matters such as a change of name or making changes that will affect the
rights, preferences, privileges or powers of the preferred shareholders.
General Meetings of Shareholders.
As a Cayman Islands exempted company, we are not obliged by the Companies Law to call shareholders’
annual general meetings. Our articles of association provide that we may (but are not obliged to) in each year hold
a general meeting as our annual general meeting in which case we shall specify the meeting as such in the notices
calling it, and the annual general meeting shall be held at such time and place as may be determined by our
directors.
Shareholders’ general meetings may be convened by the chairman or a majority of our board of directors.
Advance notice of at least ten (10) calendar days is required for the convening of our annual general shareholders’
meeting (if any) and any other general meeting of our shareholders. A quorum required for any general meeting of
shareholders consists of one or more shareholders present or by proxy, representing not less than a majority of all
votes attaching to all of our shares in issue and entitled to vote.
The Companies Law provides shareholders with only limited rights to requisition a general meeting, and
does not provide shareholders with any right to put any proposal before a general meeting. However, these rights
may be provided in a company’s articles of association. Our memorandum and articles of association provide that
upon the requisition of shareholders representing in aggregate not less than one-third of all votes attaching to all
issued and outstanding shares of our company that as at the date of the deposit carry the right to vote at general
meetings of our company, our board of directors will convene an extraordinary general meeting and put the
resolutions so requisitioned to a vote at such meeting. However, our memorandum and articles of association do
not provide our shareholders with any right to put any proposals before annual general meetings or extraordinary
general meetings not called by such shareholders.
Transfer of Ordinary Shares.
Subject to the restrictions set out below, any of our shareholders may transfer all or any of his or her
ordinary shares by an instrument of transfer in writing, and shall be executed by or on behalf of the transferor, and
if in respect of a nil or partly paid up share, or the directors so require, shall also be executed by the transferee.
Our board of directors may, in its absolute discretion, decline to register any transfer of any ordinary share
which is not fully paid up or on which we have a lien. Our board of directors may also decline to register any
transfer of any ordinary share unless:
(cid:0) the instrument of transfer is lodged with us, accompanied by the certificate for the ordinary shares to
which it relates and such other evidence as our board of directors may reasonably require to show the
right of the transferor to make the transfer;
(cid:0) the instrument of transfer is in respect of only one class of ordinary shares;
(cid:0) the instrument of transfer is properly stamped, if required;
3
(cid:0) in the case of a transfer to joint holders, the number of joint holders to whom the ordinary share is to
be transferred does not exceed four; and
(cid:0) a fee of such maximum sum as the Nasdaq Global Select Market may determine to be payable or such
lesser sum as our directors may from time to time require is paid to us in respect thereof.
If our directors refuse to register a transfer they shall, within three calendar months after the date on which
the instrument of transfer was lodged, send to each of the transferor and the transferee notice of such refusal.
The registration of transfers may, after compliance with any notice required of the Nasdaq Stock Market,
be suspended and the register closed at such times and for such periods as our board of directors may from time to
time determine, provided, however, that the registration of transfers shall not be suspended nor the register closed
for more than 30 calendar days in any calendar year as our board may determine.
Liquidation
On the winding up of our company, if the assets available for distribution amongst our shareholders shall
be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the
surplus shall be distributed amongst our shareholders in proportion to the par value of the shares held by them at
the commencement of the winding up, subject to a deduction from those shares in respect of which there are
monies due, of all monies payable to our company for unpaid calls or otherwise. If our assets available for
distribution are insufficient to repay all of the paid-up capital, the assets will be distributed so that the losses are
borne by our shareholders in proportion to the par value of the shares held by them.
Calls on Shares and Forfeiture of Shares
Our board of directors may from time to time make calls upon shareholders for any amounts unpaid on
their shares in a notice served to such shareholders at least 14 calendar days prior to the specified time of
payment. The shares that have been called upon and remain unpaid are subject to forfeiture.
Redemption, Repurchase and Surrender of Shares
We may issue shares on terms that such shares are subject to redemption, at our option or at the option of
the holders of these shares, on such terms and in such manner as may be determined by our board of directors, or
by the shareholders by special resolutions. Our Company may also repurchase any of our shares on such terms
and in such manner as have been approved by our board of directors or by an ordinary resolution of our
shareholders. Under the Companies Law, the redemption or repurchase of any share may be paid out of our
Company’s profits or out of the proceeds of a new issue of shares made for the purpose of such redemption or
repurchase, or out of capital (including share premium account and capital redemption reserve) if our company
can, immediately following such payment, pay its debts as they fall due in the ordinary course of business. In
addition, under the Companies Law no such share may be redeemed or repurchased (a) unless it is fully paid up,
(b) if such redemption or repurchase
4
would result in there being no shares outstanding or (c) if the company has commenced liquidation. In addition,
our company may accept the surrender of any fully paid share for no consideration.
Requirements to Change the Rights of Holders of Class A Ordinary Shares (Item 10.B.4 of Form 20-F)
Variations of Rights of Shares
If at any time, our share capital is divided into different classes of shares, the rights attached to any class of
shares (unless otherwise provided by the terms of issue of the shares of that class), whether or not our company is
being wound-up, may be varied with the consent in writing of the holders of two-thirds of the issued shares of that
class or with the sanction of a resolution passed at a separate meeting of the holders of the shares of the class by
the holders of two-thirds of the issued shares of that class. The rights conferred upon the holders of the shares of
any class issued shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be
deemed to be varied by the creation or issue of further shares ranking pari passu with such existing class of shares.
Limitations on the Rights to Own Class A Ordinary Shares (Item 10.B.6 of Form 20-F)
There are no limitations imposed by our memorandum and articles of association on the rights of non-
resident or foreign shareholders to hold or exercise voting rights on our shares. In addition, there are no provisions
in our memorandum and articles of association governing the ownership threshold above which shareholder
ownership must be disclosed.
Provisions Affecting Any Change of Control (Item 10.B.7 of Form 20-F)
Anti-Takeover Provisions.
Some provisions of our memorandum and articles of association may discourage, delay or prevent a
change of control of our company or management that shareholders may consider favorable, including provisions
that:
(cid:0) authorize our board of directors to issue preference shares in one or more series and to designate the
price, rights, preferences, privileges and restrictions of such preference shares without any further vote
or action by our shareholders; and
(cid:0) limit the ability of shareholders to requisition and convene general meetings of shareholders.
However, under Cayman Islands law, our directors may only exercise the rights and powers granted to
them under our memorandum and articles of association for a proper purpose and for what they believe in good
faith to be in the best interests of our company.
5
Ownership Threshold (Item 10.B.8 of Form 20-F)
There are no provisions in our memorandum and articles of association governing the ownership threshold
above which shareholder ownership must be disclosed.
Differences Between the Law of Different Jurisdictions (Item 10.B.9 of Form 20-F)
The Companies Law is modeled after that of England but does not follow recent English statutory
enactments and differs from laws applicable to U.S. corporations and their shareholders. Set forth below is a
summary of the significant differences between the provisions of the Companies Law applicable to us and the
laws applicable to companies incorporated in the United States and their shareholders.
Mergers and Similar Arrangements.
The Companies Law permits mergers and consolidations between Cayman Islands companies and between
Cayman Islands companies and non-Cayman Islands companies. For these purposes, (a) "merger" means the
merging of two or more constituent companies and the vesting of their undertaking, property and liabilities in one
of such companies as the surviving company, and (b) a "consolidation" means the combination of two or more
constituent companies into a consolidated company and the vesting of the undertaking, property and liabilities of
such companies to the consolidated company. In order to effect such a merger or consolidation, the directors of
each constituent company must approve a written plan of merger or consolidation, which must then be authorized
by (a) a special resolution of the shareholders of each constituent company, and (b) such other authorization, if
any, as may be specified in such constituent company's articles of association. The plan must be filed with the
Registrar of Companies of the Cayman Islands together with a declaration as to the solvency of the consolidated
or surviving company, a list of the assets and liabilities of each constituent company and an undertaking that a
copy of the certificate of merger or consolidation will be given to the members and creditors of each constituent
company and that notification of the merger or consolidation will be published in the Cayman Islands Gazette.
Court approval is not required for a merger or consolidation which is effected in compliance with these statutory
procedures.
A merger between a Cayman parent company and its Cayman subsidiary or subsidiaries does not require
authorization by a resolution of shareholders of that Cayman subsidiary if a copy of the plan of merger is given to
every member of that Cayman subsidiary to be merged unless that member agrees otherwise. For this purpose a
company is a "parent" of a subsidiary if it holds issued shares that together represent at least 90% of the votes at a
general meeting of the subsidiary.
The consent of each holder of a fixed or floating security interest over a constituent company is required
unless this requirement is waived by a court in the Cayman Islands.
Save in certain limited circumstances, a shareholder of a Cayman constituent company who dissents from
the merger or consolidation is entitled to payment of the fair value of his shares (which, if not agreed between the
parties, will be determined by the Cayman Islands court) upon dissenting to the merger or consolidation, provide
the dissenting shareholder complies strictly with the procedures set out in the Companies Law. The exercise of
dissenter rights will preclude the exercise by the dissenting shareholder of any other rights to which he or she
might otherwise be
6
entitled by virtue of holding shares, save for the right to seek relief on the grounds that the merger or
consolidation is void or unlawful.
Separate from the statutory provisions relating to mergers and consolidations, the Companies Law also
contains statutory provisions that facilitate the reconstruction and amalgamation of companies by way of schemes
of arrangement, provided that the arrangement is approved by a majority in number of each class of shareholders
and creditors with whom the arrangement is to be made, and who must in addition represent three-fourths in value
of each such class of shareholders or creditors, as the case may be, that are present and voting either in person or
by proxy at a meeting, or meetings, convened for that purpose. The convening of the meetings and subsequently
the arrangement must be sanctioned by the Grand Court of the Cayman Islands. While a dissenting shareholder
has the right to express to the court the view that the transaction ought not to be approved, the court can be
expected to approve the arrangement if it determines that:
(cid:0) the statutory provisions as to the required majority vote have been met;
(cid:0) the shareholders have been fairly represented at the meeting in question and the statutory majority are
acting bona fide without coercion of the minority to promote interests adverse to those of the class;
(cid:0) the arrangement is such that may be reasonably approved by an intelligent and honest man of that class
acting in respect of his interest; and
(cid:0) the arrangement is not one that would more properly be sanctioned under some other provision of the
Companies Law.
The Companies Law also contains a statutory power of compulsory acquisition which may facilitate the
"squeeze out" of dissentient minority shareholder upon a tender offer. When a tender offer is made and accepted
by holders of 90% of the shares affected within four months, the offeror may, within a two-month period
commencing on the expiration of such four month period, require the holders of the remaining shares to transfer
such shares to the offeror on the terms of the offer. An objection can be made to the Grand Court of the Cayman
Islands but this is unlikely to succeed in the case of an offer which has been so approved unless there is evidence
of fraud, bad faith or collusion.
If an arrangement and reconstruction is thus approved, or if a tender offer is made and accepted, a
dissenting shareholder would have no rights comparable to appraisal rights, save that objectors to a takeover offer
may apply to the Grand Court of the Cayman Islands for various orders that the Grand Court of the Cayman
Islands has a broad discretion to make, which would otherwise ordinarily be available to dissenting shareholders
of Delaware corporations, providing rights to receive payment in cash for the judicially determined value of the
shares.
Shareholders’ Suits.
In principle, we will normally be the proper plaintiff and as a general rule a derivative action may not be
brought by a minority shareholder. However, based on English authorities, which would in all likelihood be of
persuasive authority in the Cayman Islands, there are exceptions to the foregoing principle, including when::
7
(cid:0) a company acts or proposes to act illegally or ultra vires;
(cid:0) the act complained of, although not ultra vires, could only be effected duly if authorized by more than
a simple majority vote that has not been obtained; and
(cid:0) those who control the company are perpetrating a “fraud on the minority.”
Indemnification of Directors and Executive Officers and Limitation of Liability.
Cayman Islands law does not limit the extent to which a company's memorandum and articles of
association may provide for indemnification of officers and directors, except to the extent any such provision may
be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against
civil fraud or the consequences of committing a crime. Our memorandum and articles of association permit
indemnification of officers and directors against all actions, proceedings, costs, charges, expenses, losses,
damages or liabilities incurred or sustained by such officers and directors, other than by reason of such officer's or
director's own dishonesty, willful default or fraud, in or about the conduct of our business or affairs (including as a
result of any mistake of judgment) or in the execution or discharge of his or her duties, powers, authorities or
discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities
incurred by such officer and director in defending (whether successfully or otherwise) any civil proceedings
concerning us or our affairs in any court whether in the Cayman Islands or elsewhere. This standard of conduct is
generally the same as permitted under the Delaware General Corporation Law for a Delaware corporation.
In addition, we have entered into indemnification agreements with our directors and executive officers that
provide such persons with additional indemnification beyond that provided in our memorandum and articles of
association.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors,
officers or persons controlling us under the foregoing provisions, we have been informed that in the opinion of the
SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore
unenforceable.
Directors’ Fiduciary Duties.
Under Delaware corporate law, a director of a Delaware corporation has a fiduciary duty to the corporation
and its shareholders. This duty has two components: the duty of care and the duty of loyalty. The duty of care
requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under
similar circumstances. Under this duty, a director must inform himself of, and disclose to shareholders, all
material information reasonably available regarding a significant transaction. The duty of loyalty requires that a
director acts in a manner he reasonably believes to be in the best interests of the corporation. He must not use his
corporate position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that
the best interest of the corporation and its shareholders take precedence over any interest possessed by a director,
officer or controlling shareholder and not shared by the shareholders generally. In general, actions of a director are
presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was
in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one
of the fiduciary duties.
8
Should such evidence be presented concerning a transaction by a director, the director must prove the procedural
fairness of the transaction, and that the transaction was of fair value to the corporation.
As a matter of Cayman Islands law, a director of a Cayman Islands company is in the position of a
fiduciary with respect to the company and therefore it is considered that he owes the following duties to the
company—a duty to act bona fide in the best interests of the company, a duty not to make a profit based on his
position as director (unless the company permits him to do so) and a duty not to put himself in a position where
the interests of the company conflict with his personal interest or his duty to a third party. A director of a Cayman
Islands company owes to the company a duty to act with skill and care. It was previously considered that a
director need not exhibit in the performance of his duties a greater degree of skill than may reasonably be
expected from a person of his knowledge and experience. However, English and Commonwealth courts have
moved towards an objective standard with regard to the required skill and care and these authorities are likely to
be followed in the Cayman Islands.
Shareholder Action by Written Consent.
Under the Delaware General Corporation Law, a corporation may eliminate the right of shareholders to act
by written consent by amendment to its certificate of incorporation. Cayman Islands law and our articles of
association provide that shareholders may approve corporate matters by way of a unanimous written resolution
signed by or on behalf of each shareholder who would have been entitled to vote on such matter at a general
meeting without a meeting being held.
Shareholder Proposals.
Under the Delaware General Corporation Law, a shareholder has the right to put any proposal before the
annual meeting of shareholders, provided it complies with the notice provisions in the governing documents. A
special meeting may be called by the board of directors or any other person authorized to do so in the governing
documents, but shareholders may be precluded from calling special meetings.
The Companies Law provide shareholders with only limited rights to requisition a general meeting, and
does not provide shareholders with any right to put any proposal before a general meeting. However, these rights
may be provided in a company's articles of association. Our articles of association allow our shareholders holding
in aggregate not less than one-third of all votes attaching to the outstanding shares of our company entitled to vote
at general meetings to requisition an extraordinary general meeting of our shareholders, in which case our board is
obliged to convene an extraordinary general meeting and to put the resolutions so requisitioned to a vote at such
meeting. Other than this right to requisition a shareholders' meeting, our articles of association do not provide our
shareholders with any other right to put proposals before annual general meetings or extraordinary general
meetings. As an exempted Cayman Islands company, we are not obliged by law to call shareholders' annual
general meetings.
Cumulative Voting.
Under the Delaware General Corporation Law, cumulative voting for elections of directors is not permitted
unless the corporation's certificate of incorporation specifically provides for it. Cumulative voting potentially
facilitates the representation of minority shareholders on a board of
9
directors since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a
single director, which increases the shareholder's voting power with respect to electing such director. There are no
prohibitions in relation to cumulative voting under the laws of the Cayman Islands but our articles of association
do not provide for cumulative voting. As a result, our shareholders are not afforded any less protections or rights
on this issue than shareholders of a Delaware corporation.
Removal of Directors.
Under the Delaware General Corporation Law, a director of a corporation with a classified board may be
removed only for cause with the approval of a majority of the outstanding shares entitled to vote, unless the
certificate of incorporation provides otherwise. Under our articles of association, directors may be removed with
or without cause, by an ordinary resolution of our shareholders.
Transactions with Interested Shareholders.
The Delaware General Corporation Law contains a business combination statute applicable to Delaware
corporations whereby, unless the corporation has specifically elected not to be governed by such statute by
amendment to its certificate of incorporation, it is prohibited from engaging in certain business combinations with
an "interested shareholder" for three years following the date that such person becomes an interested shareholder.
An interested shareholder generally is a person or a group who or which owns or owned 15% or more of the
target's outstanding voting share within the past three years. This has the effect of limiting the ability of a potential
acquirer to make a two-tiered bid for the target in which all shareholders would not be treated equally. The statute
does not apply if, among other things, prior to the date on which such shareholder becomes an interested
shareholder, the board of directors approves either the business combination or the transaction which resulted in
the person becoming an interested shareholder. This encourages any potential acquirer of a Delaware corporation
to negotiate the terms of any acquisition transaction with the target's board of directors.
Cayman Islands law has no comparable statute. As a result, we cannot avail ourselves of the types of
protections afforded by the Delaware business combination statute. However, although Cayman Islands law does
not regulate transactions between a company and its significant shareholders, it does provide that such
transactions must be entered into bona fide in the best interests of the company and not with the effect of
constituting a fraud on the minority shareholders.
Dissolution; Winding Up.
Under the Delaware General Corporation Law, unless the board of directors approves the proposal to
dissolve, dissolution must be approved by shareholders holding 100% of the total voting power of the corporation.
Only if the dissolution is initiated by the board of directors may it be approved by a simple majority of the
corporation's outstanding shares. Delaware law allows a Delaware corporation to include in its certificate of
incorporation a supermajority voting requirement in connection with dissolutions initiated by the board.
Under Cayman Islands law, a company may be wound up by either an order of the courts of the Cayman
Islands or by a special resolution of its members or, if the company is unable to pay its debts as they fall due, by
an ordinary resolution of its members. The court has authority to
10
order winding up in a number of specified circumstances including where it is, in the opinion of the court, just and
equitable to do so. Under the Companies Law and our articles of association, our company may be dissolved,
liquidated or wound up by a special resolution of our shareholders.
Variation of Rights of Shares.
Under the Delaware General Corporation Law, a corporation may vary the rights of a class of shares with
the approval of a majority of the outstanding shares of such class, unless the certificate of incorporation provides
otherwise. Under Cayman Islands law and our articles of association, if our share capital is divided into more than
one class of shares, we may vary the rights attached to any class with the written consent of the holders of two-
thirds of the issued shares of that class or with the sanction of a resolution passed at a general meeting of the
holders of the shares of that class by holders of two-thirds of the issued shares of that class.
Amendment of Governing Documents.
Under the Delaware General Corporation Law, a corporation's governing documents may be amended with
the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation
provides otherwise. As permitted by Cayman Islands law, our memorandum and articles of association may only
be amended with a special resolution of our shareholders.
Changes in Capital (Item 10.B.10 of Form 20-F)
Our shareholders may from time to time by ordinary resolution:
(cid:0) increase our share capital by such sum, to be divided into shares of such classes and amount, as the
resolution shall prescribe;
(cid:0) consolidate and divide all or any of our share capital into shares of a larger amount than our existing
shares;
(cid:0) convert all or any of our paid up shares into stock and reconvert that stock into paid up shares of any
denomination;
(cid:0) subdivide our existing shares, or any of them, into shares of an amount smaller than that fixed by the
memorandum, provided that in the subdivision the proportion between the amount paid and the
amount, if any, unpaid on each reduced share shall be the same as it was in case of the share from
which the reduced share is derived; or
(cid:0) cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to
be taken by any person and diminish the amount of our share capital by the amount of the shares so
cancelled.
We may by special resolution, reduce our share capital and any capital redemption reserve in any manner
permitted by law.
11
Debt Securities (Item 12.A of Form 20-F)
Not applicable.
Warrants and Rights (Item 12.B of Form 20-F)
Not applicable.
Other Securities (Item 12.C of Form 20-F)
Not applicable.
Description of American Depositary Shares (Items 12.D.1 and 12.D.2 of Form 20-F)
Deutsche Bank Trust Company Americas, as depositary, registers and delivers the ADSs. Each ADS
represents ownership of four Class A ordinary shares, deposited with Deutsche Bank AG, Hong Kong Branch, as
custodian for the depositary. Each ADS also represents ownership of any other securities, cash or other property
which may be held by the depositary. The depositary's corporate trust office at which the ADSs will be
administered is located at 60 Wall Street, New York, NY 10005, USA. The principal executive office of the
depositary is located at 60 Wall Street, New York, NY 10005, USA.
The Direct Registration System, or DRS, is a system administered by The Depository Trust Company, or
DTC, pursuant to which the depositary may register the ownership of uncertificated ADSs, which ownership shall
be evidenced by periodic statements issued by the depositary to the ADS holders entitled thereto.
We do not treat ADS holders as our shareholders and accordingly, you, as an ADS holder, do not have
shareholder rights. Cayman Islands law governs shareholder rights. The depositary is the holder of the Class A
ordinary shares underlying your ADSs. As a holder of ADSs, you have ADS holder rights. A deposit agreement
among us, the depositary and you, as an ADS holder, and the beneficial owners of ADSs sets out ADS holder
rights as well as the rights and obligations of the depositary. The laws of the State of New York govern the deposit
agreement and the ADSs.
The following is a summary of the material provisions of the deposit agreement. For more complete
information, you should read the entire deposit agreement and the form of American Depositary Receipt. The
deposit agreement has been filed with the SEC as an exhibit to a Registration Statement on Form F-6 (File No.
333-226185) for our company.
Holding the ADSs
How will you hold your ADSs?
You may hold ADSs either (1) directly (a) by having an American Depositary Receipt, or ADR, which is a
certificate evidencing a specific number of ADSs, registered in your name, or (b) by holding ADSs in DRS, or (2)
indirectly through your broker or other financial institution. If you hold ADSs directly, you are an ADS holder.
This description assumes you hold your ADSs directly. ADSs will be issued through DRS, unless you specifically
request certificated ADRs. If you hold the ADSs indirectly, you must rely on the procedures of your broker or
other
12
financial institution to assert the rights of ADS holders described in this section. You should consult with your
broker or financial institution to find out what those procedures are.
Dividends and Other Distributions
How will you receive dividends and other distributions on the shares?
The depositary has agreed to pay to you the cash dividends or other distributions it or the custodian
receives on Class A ordinary shares or other deposited securities, after deducting its fees and expenses. You will
receive these distributions in proportion to the number of Class A ordinary shares your ADSs represent as of the
record date (which will be as close as practicable to the record date for our Class A ordinary shares) set by the
depositary with respect to the ADSs.
(cid:0) Cash. The depositary will convert or cause to be converted any cash dividend or other cash distribution we
pay on the Class A ordinary shares or any net proceeds from the sale of any Class A ordinary shares,
rights, securities or other entitlements under the terms of the deposit agreement into U.S. dollars if it can
do so on a practicable basis, and can transfer the U.S. dollars to the United States and will distribute
promptly the amount thus received. If the depositary shall determine in its judgment that such conversions
or transfers are not practical or lawful or if any government approval or license is needed and cannot be
obtained at a reasonable cost within a reasonable period or otherwise sought, the deposit agreement allows
the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so.
It will hold or cause the custodian to hold the foreign currency it cannot convert for the account of the
ADS holders who have not been paid and such funds will be held for the respective accounts of the ADS
holders. It will not invest the foreign currency and it will not be liable for any interest for the respective
accounts of the ADS holders. Before making a distribution, any taxes or other governmental charges,
together with fees and expenses of the depositary, that must be paid, will be deducted. It will distribute
only whole U.S. dollars and cents and will round down fractional cents to the nearest whole cent. If the
exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, you may
lose some or all of the value of the distribution.
(cid:0) Shares. For any Class A ordinary shares we distribute as a dividend or free distribution, either (1) the
depositary will distribute additional ADSs representing such Class A ordinary shares or (2) existing ADSs
as of the applicable record date will represent rights and interests in the additional Class A ordinary shares
distributed, to the extent reasonably practicable and permissible under law, in either case, net of applicable
fees, charges and expenses incurred by the depositary and taxes and/or other governmental charges. The
depositary will only distribute whole ADSs. It will try to sell Class A ordinary shares which would require
it to deliver a fractional ADS and distribute the net proceeds in the same way as it does with cash. The
depositary may sell a portion of the distributed Class A ordinary shares sufficient to pay its fees and
expenses, and any taxes and governmental charges, in connection with that distribution.
(cid:0) Elective Distributions in Cash or Shares. If we offer holders of our Class A ordinary shares the option to
receive dividends in either cash or shares, the depositary, after consultation
13
with us and having received timely notice as described in the deposit agreement of such elective
distribution by us, has discretion to determine to what extent such elective distribution will be made
available to you as a holder of the ADSs. We must timely first instruct the depositary to make such elective
distribution available to you and furnish it with satisfactory evidence that it is legal to do so. The
depositary could decide it is not legal or reasonably practicable to make such elective distribution available
to you. In such case, the depositary shall, on the basis of the same determination as is made in respect of
the Class A ordinary shares for which no election is made, distribute either cash in the same way as it does
in a cash distribution, or additional ADSs representing Class A ordinary shares in the same way as it does
in a share distribution. The depositary is not obligated to make available to you a method to receive the
elective dividend in shares rather than in ADSs. There can be no assurance that you will be given the
opportunity to receive elective distributions on the same terms and conditions as the holders of Class A
ordinary shares.
(cid:0) Rights to Purchase Additional Shares. If we offer holders of our Class A ordinary shares any rights to
subscribe for additional shares, the depositary shall having received timely notice as described in the
deposit agreement of such distribution by us, consult with us, and we must determine whether it is lawful
and reasonably practicable to make these rights available to you. We must first instruct the depositary to
make such rights available to you and furnish the depositary with satisfactory evidence that it is legal to do
so. If the depositary decides it is not legal or reasonably practicable to make the rights available but that it
is lawful and reasonably practicable to sell the rights, the depositary will endeavor to sell the rights and in
a riskless principal capacity or otherwise, at such place and upon such terms (including public or private
sale) as it may deem proper distribute the net proceeds in the same way as it does with cash.
The depositary will allow rights that are not distributed or sold to lapse. In that case, you will receive no
value for them.
If the depositary makes rights available to you, it will establish procedures to distribute such rights and
enable you to exercise the rights upon your payment of applicable fees, charges and expenses incurred by
the depositary and taxes and/or other governmental charges. The Depositary shall not be obliged to make
available to you a method to exercise such rights to subscribe for Class A ordinary shares (rather than
ADSs).
U.S. securities laws may restrict transfers and cancellation of the ADSs represented by shares purchased
upon exercise of rights. For example, you may not be able to trade these ADSs freely in the United States.
In this case, the depositary may deliver restricted depositary shares that have the same terms as the ADSs
described in this section except for changes needed to put the necessary restrictions in place.
There can be no assurance that you will be given the opportunity to exercise rights on the same terms and
conditions as the holders of Class A ordinary shares or be able to exercise such rights.
(cid:0) Other Distributions. Subject to receipt of timely notice, as described in the deposit agreement, from us
with the request to make any such distribution available to you, and
14
provided the depositary has determined such distribution is lawful and reasonably practicable and feasible
and in accordance with the terms of the deposit agreement, the depositary will distribute to you anything
else we distribute on deposited securities by any means it may deem practicable, upon your payment of
applicable fees, charges and expenses incurred by the depositary and taxes and/or other governmental
charges. If any of the conditions above are not met, the depositary will endeavor to sell, or cause to be
sold, what we distributed and distribute the net proceeds in the same way as it does with cash; or, if it is
unable to sell such property, the depositary may dispose of such property in any way it deems reasonably
practicable under the circumstances for nominal or no consideration, such that you may have no rights to
or arising from such property.
The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution
available to any ADS holders. We have no obligation to register ADSs, shares, rights or other securities under the
Securities Act. We also have no obligation to take any other action to permit the distribution of ADSs, shares,
rights or anything else to ADS holders. This means that you may not receive the distributions we make on our
shares or any value for them if we and/or the depositary determines that it is illegal or not practicable for us or the
depositary to make them available to you.
Deposit, Withdrawal and Cancellation
How are ADSs issued?
The depositary will deliver ADSs if you or your broker deposit Class A ordinary shares or evidence of
rights to receive Class A ordinary shares with the custodian. Upon payment of its fees and expenses and of any
taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register the appropriate
number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons
entitled thereto.
How do ADS holders cancel an American Depositary Share?
You may turn in your ADSs at the depositary’s corporate trust office or by providing appropriate
instructions to your broker. Upon payment of its fees and expenses and of any taxes or charges, such as stamp
taxes or stock transfer taxes or fees, the depositary will deliver the Class A ordinary shares and any other
deposited securities underlying the ADSs to you or a person you designate at the office of the custodian. Or, at
your request, risk and expense, the depositary will deliver the deposited securities at its corporate trust office, to
the extent permitted by law.
How do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You may surrender your ADR to the depositary for the purpose of exchanging your ADR for uncertificated
ADSs. The depositary will cancel that ADR and will send you a statement confirming that you are the owner of
uncertificated ADSs. Alternatively, upon receipt by the depositary of a proper instruction from a holder of
uncertificated ADSs requesting the exchange of uncertificated ADSs for certificated ADSs, the depositary will
execute and deliver to you an ADR evidencing those ADSs.
15
Voting Rights
How do you vote?
You may instruct the depositary to vote the Class A ordinary shares or other deposited securities
underlying your ADSs at any meeting at which you are entitled to vote pursuant to any applicable law, the
provisions of our memorandum and articles of association, and the provisions of or governing the deposited
securities. Otherwise, you could exercise your right to vote directly if you withdraw the Class A ordinary shares.
However, you may not know about the meeting sufficiently enough in advance to withdraw the Class A ordinary
shares.
If we ask for your instructions and upon timely notice from us by regular, ordinary mail delivery, or by
electronic transmission, as described in the deposit agreement, the depositary will notify you of the upcoming
meeting at which you are entitled to vote pursuant to any applicable law, the provisions of our memorandum and
articles of association, and the provisions of or governing the deposited securities, and arrange to deliver our
voting materials to you. The materials will include or reproduce (a) such notice of meeting or solicitation of
consents or proxies; (b) a statement that the ADS holders at the close of business on the ADS record date will be
entitled, subject to any applicable law, the provisions of our memorandum and articles of association, and the
provisions of or governing the deposited securities, to instruct the depositary as to the exercise of the voting rights,
if any, pertaining to the Class A ordinary shares or other deposited securities represented by such holder’s ADSs;
and (c) a brief statement as to the manner in which such instructions may be given or deemed given in accordance
with the second to last sentence of this paragraph if no instruction is received, to the depositary to give a
discretionary proxy to a person designated by us. Voting instructions may be given only in respect of a number of
ADSs representing an integral number of Class A ordinary shares or other deposited securities. For instructions to
be valid, the depositary must receive them in writing on or before the date specified. The depositary will try, as far
as practical, subject to applicable law and the provisions of our memorandum and articles of association, to vote
or to have its agents vote the Class A ordinary shares or other deposited securities (in person or by proxy) as you
instruct. The depositary will only vote or attempt to vote as you instruct. If we timely requested the depositary to
solicit your instructions but no instructions are received by the depositary from an owner with respect to any of
the deposited securities represented by the ADSs of that owner on or before the date established by the depositary
for such purpose, the depositary shall deem that owner to have instructed the depositary to give a discretionary
proxy to a person designated by us with respect to such deposited securities, and the depositary shall give a
discretionary proxy to a person designated by us to vote such deposited securities. However, no such instruction
shall be deemed given and no such discretionary proxy shall be given with respect to any matter if we inform the
depositary we do not wish such proxy given, substantial opposition exists or the matter materially and adversely
affects the rights of holders of the Class A ordinary shares.
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the
depositary to vote the Class A ordinary shares underlying your ADSs. In addition, there can be no assurance that
ADS holders and beneficial owners generally, or any holder or beneficial owner in particular, will be given the
opportunity to vote or cause the custodian to vote on the same terms and conditions as the holders of our Class A
ordinary shares.
16
The depositary and its agents are not responsible for failing to carry out voting instructions or for the
manner of carrying out voting instructions. This means that you may not be able to exercise your right to vote and
you may have no recourse if the Class A ordinary shares underlying your ADSs are not voted as you requested.
In order to give you a reasonable opportunity to instruct the depositary as to the exercise of voting rights
relating to deposited securities, if we request the depositary to act, we will give the depositary notice of any such
meeting and details concerning the matters to be voted at least 30 business days in advance of the meeting date.
Compliance with Regulations
Information Requests
Each ADS holder and beneficial owner shall (a) provide such information as we or the depositary may
request pursuant to law, including, without limitation, relevant Cayman Islands law, any applicable law of the
United States of America, our memorandum and articles of association, any resolutions of our Board of Directors
adopted pursuant to such memorandum and articles of association, the requirements of any markets or exchanges
upon which the Class A ordinary shares, ADSs or ADRs are listed or traded, or to any requirements of any
electronic book-entry system by which the ADSs or ADRs may be transferred, regarding the capacity in which
they own or owned ADRs, the identity of any other persons then or previously interested in such ADRs and the
nature of such interest, and any other applicable matters, and (b) be bound by and subject to applicable provisions
of the laws of the Cayman Islands, our memorandum and articles of association, and the requirements of any
markets or exchanges upon which the ADSs, ADRs or Class A ordinary shares are listed or traded, or pursuant to
any requirements of any electronic book-entry system by which the ADSs, ADRs or Class A ordinary shares may
be transferred, to the same extent as if such ADS holder or beneficial owner held Class A ordinary shares directly,
in each case irrespective of whether or not they are ADS holders or beneficial owners at the time such request is
made.
Disclosure of Interests
Each ADS holder and beneficial owner shall comply with our requests pursuant to Cayman Islands law,
the rules and requirements of the New York Stock Exchange and any other stock exchange on which the Class A
ordinary shares are, or will be, registered, traded or listed or our memorandum and articles of association, which
requests are made to provide information, inter alia, as to the capacity in which such ADS holder or beneficial
owner owns ADS and regarding the identity of any other person interested in such ADS and the nature of such
interest and various other matters, whether or not they are ADS holders or beneficial owners at the time of such
requests.
Fees and Expenses
As an ADS holder, you will be required to pay the following service fees to the depositary bank and
certain taxes and governmental charges (in addition to any applicable fees, expenses, taxes and other
governmental charges payable on the deposited securities represented by any of your ADSs):
17
Service
Fees
(cid:0) To any person to which ADSs are issued or to any
person to which a distribution is made in respect of
ADS distributions pursuant to stock dividends or
other free distributions of stock, bonus
distributions, stock splits or other distributions
(except where converted to cash)
Up to US$0.05 per ADS issued
(cid:0) Cancellation of ADSs, including the case of
Up to US$0.05 per ADS cancelled
termination of the deposit agreement
(cid:0) Distribution of cash dividends
Up to US$0.05 per ADS held
(cid:0) Distribution of cash entitlements (other than cash
dividends) and/or cash proceeds from the sale of
rights, securities and other entitlements
Up to US$0.05 per ADS held
(cid:0) Distribution of ADSs pursuant to exercise of rights. Up to US$0.05 per ADS held
(cid:0) Distribution of securities other than ADSs or rights
Up to US$0.05 per ADS held
to purchase additional ADSs
(cid:0) Depositary services
Up to US$0.05 per ADS held on the applicable record
date(s) established by the depositary bank
As an ADS holder, you will also be responsible to pay certain fees and expenses incurred by the depositary
bank and certain taxes and governmental charges (in addition to any applicable fees, expenses, taxes and other
governmental charges payable on the deposited securities represented by any of your ADSs) such as:
(cid:0) Fees for the transfer and registration of Class A ordinary shares charged by the registrar and transfer
agent for the Class A ordinary shares in the Cayman Islands (i.e., upon deposit and withdrawal of Class
A ordinary shares).
(cid:0) Expenses incurred for converting foreign currency into U.S. dollars.
(cid:0) Expenses for cable, telex and fax transmissions and for delivery of securities.
(cid:0) Taxes and duties upon the transfer of securities, including any applicable stamp duties, any stock
transfer charges or withholding taxes (i.e., when Class A ordinary shares are deposited or withdrawn
from deposit).
(cid:0) Fees and expenses incurred in connection with the delivery or servicing of Class A ordinary shares on
deposit.
18
(cid:0) Fees and expenses incurred in connection with complying with exchange control regulations and other
regulatory requirements applicable to Class A ordinary shares, deposited securities, ADSs and ADRs.
(cid:0) Any applicable fees and penalties thereon.
The depositary fees payable upon the issuance and cancellation of ADSs are typically paid to the
depositary bank by the brokers (on behalf of their clients) receiving the newly issued ADSs from the depositary
bank and by the brokers (on behalf of their clients) delivering the ADSs to the depositary bank for cancellation.
The brokers in turn charge these fees to their clients. Depositary fees payable in connection with distributions of
cash or securities to ADS holders and the depositary services fee are charged by the depositary bank to the holders
of record of ADSs as of the applicable ADS record date.
The depositary fees payable for cash distributions are generally deducted from the cash being distributed
or by selling a portion of distributable property to pay the fees. In the case of distributions other than cash (i.e.,
share dividends, rights), the depositary bank charges the applicable fee to the ADS record date holders concurrent
with the distribution. In the case of ADSs registered in the name of the investor (whether certificated or
uncertificated in direct registration), the depositary bank sends invoices to the applicable record date ADS holders.
In the case of ADSs held in brokerage and custodian accounts (via DTC), the depositary bank generally collects
its fees through the systems provided by DTC (whose nominee is the registered holder of the ADSs held in DTC)
from the brokers and custodians holding ADSs in their DTC accounts. The brokers and custodians who hold their
clients’ ADSs in DTC accounts in turn charge their clients’ accounts the amount of the fees paid to the depositary
banks.
In the event of refusal to pay the depositary fees, the depositary bank may, under the terms of the deposit
agreement, refuse the requested service until payment is received or may set off the amount of the depositary fees
from any distribution to be made to the ADS holder.
The depositary may make payments to us or reimburse us for certain costs and expenses, by making
available a portion of the ADS fees collected in respect of the ADR program or otherwise, upon such terms and
conditions as we and the depositary bank agree from time to time.
Payment of Taxes
You will be responsible for any taxes or other governmental charges payable, or which become payable, on
your ADSs or on the deposited securities represented by any of your ADSs. The depositary may refuse to register
or transfer your ADSs or allow you to withdraw the deposited securities represented by your ADSs until such
taxes or other charges are paid. It may apply payments owed to you or sell deposited securities represented by
your ADSs to pay any taxes owed and you will remain liable for any deficiency. If the depositary sells deposited
securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to you any net proceeds, or
send to you any property, remaining after it has paid the taxes. You agree to indemnify us, the depositary, the
custodian and each of our and their respective agents, directors, employees and affiliates for, and hold each of
them harmless from, any claims with respect to
19
taxes (including applicable interest and penalties thereon) arising from any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained for you. Your obligations under this paragraph shall survive
any transfer of ADRs, any surrender of ADRs and withdrawal of deposited securities or the termination of the
deposit agreement.
Reclassifications, Recapitalizations and Mergers
If we:
Then:
Change the nominal or par value of our Class A
ordinary shares
The cash, shares or other securities received by the
depositary will become deposited securities.
Reclassify, split up or consolidate any of the deposited
securities
Each ADS will automatically represent its equal share
of the new deposited securities.
Distribute securities on the Class A ordinary shares that
are not distributed to you, or recapitalize, reorganize,
merge, liquidate, sell all or substantially all of our
assets, or take any similar action
The depositary may distribute some or all of the cash,
shares or other securities it received. It may also deliver
new ADSs or ask you to surrender your outstanding
ADRs in exchange for new ADRs identifying the new
deposited securities.
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the deposit agreement and the form of ADR without your
consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other
governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or
similar items, including expenses incurred in connection with foreign exchange control regulations and other
charges specifically payable by ADS holders under the deposit agreement, or materially prejudices a substantial
existing right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the depositary
notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered, by
continuing to hold your ADSs, to agree to the amendment and to be bound by the ADRs and the deposit
agreement as amended . If any new laws are adopted which would require the deposit agreement to be amended in
order to comply therewith, we and the depositary may amend the deposit agreement in accordance with such laws
and such amendment may become effective before notice thereof is given to ADS holders.
How may the deposit agreement be terminated?
The depositary will terminate the deposit agreement if we ask it to do so, in which case the depositary will
give notice to you at least 90 days prior to termination. The depositary may also terminate the deposit agreement if
the depositary has told us that it would like to resign, or if we have removed the depositary, and in either case we
have not appointed a new depositary within 90 days. In either such case, the depositary must notify you at least 30
days before termination.
20
After termination, the depositary and its agents will do the following under the deposit agreement but
nothing else: collect distributions on the deposited securities, sell rights and other property and deliver Class A
ordinary shares and other deposited securities upon cancellation of ADSs after payment of any fees, charges, taxes
or other governmental charges. Six months or more after the date of termination, the depositary may sell any
remaining deposited securities by public or private sale. After that, the depositary will hold the money it received
on the sale, as well as any other cash it is holding under the deposit agreement, for the pro rata benefit of the ADS
holders that have not surrendered their ADSs. It will not invest the money and has no liability for interest. After
such sale, the depositary’s only obligations will be to account for the money and other cash. After termination, we
shall be discharged from all obligations under the deposit agreement except for our obligations to the depositary
thereunder.
Books of Depositary
The depositary will maintain ADS holder records at its depositary office. You may inspect such records at
such office during regular business hours but solely for the purpose of communicating with other holders in the
interest of business matters relating to the Company, the ADRs and the deposit agreement.
The depositary will maintain facilities in the Borough of Manhattan, The City of New York to record and
process the issuance, cancellation, combination, split-up and transfer of ADRs.
These facilities may be closed at any time or from time to time when such action is deemed necessary or
advisable by the depositary in connection with the performance of its duties under the deposit agreement or at our
reasonable written request.
Limitations on Obligations and Liability
Limits on our obligations and the Obligations of the Depositary and the Custodian; Limits on Liability to Holders
of ADSs
The deposit agreement expressly limits our obligations and the obligations of the depositary and the
custodian. It also limits our liability and the liability of the depositary. The depositary and the custodian:
(cid:0) are only obligated to take the actions specifically set forth in the deposit agreement without gross
negligence or willful misconduct;
(cid:0) are not liable if any of us or our respective controlling persons or agents are prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account of, or delayed in, doing or
performing any act or thing required by the terms of the deposit agreement and any ADR, by reason of
any provision of any present or future law or regulation of the United States or any state thereof, the
Cayman Islands or any other country, or of any other governmental authority or regulatory authority or
stock exchange, or on account of the possible criminal or civil penalties or restraint, or by reason of
any provision, present or future, of our memorandum and articles of association or any provision of or
governing any deposited securities, or by reason of
21
any act of God or war or other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure);
(cid:0) are not liable by reason of any exercise of, or failure to exercise, any discretion provided for in the
deposit agreement or in our memorandum and articles of association or provisions of or governing
deposited securities;
(cid:0) are not liable for any action or inaction of the depositary, the custodian or us or their or our respective
controlling persons or agents in reliance upon the advice of or information from legal counsel, any
person presenting Class A ordinary shares for deposit or any other person believed by it in good faith
to be competent to give such advice or information;
(cid:0) are not liable for the inability of any holder of ADSs to benefit from any distribution on deposited
securities that is not made available to holders of ADSs under the terms of the deposit agreement;
(cid:0) are not liable for any special, consequential, indirect or punitive damages for any breach of the terms
of the deposit agreement, or otherwise;
(cid:0) may rely upon any documents we believe in good faith to be genuine and to have been signed or
presented by the proper party;
(cid:0) disclaim any liability for any action or inaction or inaction of any of us or our respective controlling
persons or agents in reliance upon the advice of or information from legal counsel, accountants, any
person presenting Class A ordinary shares for deposit, holders and beneficial owners (or authorized
representatives) of ADSs, or any person believed in good faith to be competent to give such advice or
information; and
(cid:0) disclaim any liability for inability of any holder to benefit from any distribution, offering, right or other
benefit made available to holders of deposited securities but not made available to holders of ADS.
The depositary and any of its agents also disclaim any liability (i) for any failure to carry out any
instructions to vote, the manner in which any vote is cast or the effect of any vote or failure to determine that any
distribution or action may be lawful or reasonably practicable or for allowing any rights to lapse in accordance
with the provisions of the deposit agreement, (ii) the failure or timeliness of any notice from us, the content of any
information submitted to it by us for distribution to you or for any inaccuracy of any translation thereof, (iii) any
investment risk associated with the acquisition of an interest in the deposited securities, the validity or worth of
the deposited securities, the credit-worthiness of any third party, (iv) for any tax consequences that may result
from ownership of ADSs, Class A ordinary shares or deposited securities, or (v) for any acts or omissions made
by a successor depositary whether in connection with a previous act or omission of the depositary or in connection
with any matter arising wholly after the removal or resignation of the depositary, provided that in connection with
the issue out of which
22
such potential liability arises the depositary performed its obligations without gross negligence or willful
misconduct while it acted as depositary.
In addition, the deposit agreement provides that each party to the deposit agreement (including each
holder, beneficial owner and holder of interests in the ADRs) irrevocably waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in any lawsuit or proceeding against the depositary or our
company related to our shares, the ADSs or the deposit agreement. This provision does not apply to claims against
us made under the federal securities laws.
In the deposit agreement, we and the depositary agree to indemnify each other under certain
circumstances.
Requirements for Depositary Actions
Before the depositary will issue, deliver or register a transfer of an ADS, split-up, subdivide or combine
ADSs, make a distribution on an ADS, or permit withdrawal of Class A ordinary shares, the depositary may
require:
(cid:0) payment of stock transfer or other taxes or other governmental charges and transfer or registration fees
charged by third parties for the transfer of any Class A ordinary shares or other deposited securities
and payment of the applicable fees, expenses and charges of the depositary;
(cid:0) satisfactory proof of the identity and genuineness of any signature or any other matters contemplated
in the deposit agreement; and
(cid:0) compliance with (A) any laws or governmental regulations relating to the execution and delivery of
ADRs or ADSs or to the withdrawal or delivery of deposited securities and (B) such reasonable
regulations and procedures as the depositary may establish, from time to time, consistent with the
deposit agreement and applicable laws, including presentation of transfer documents.
The depositary may refuse to issue and deliver ADSs or register transfers of ADSs generally when the
register of the depositary or our transfer books are closed or at any time if the depositary or we determine that it is
necessary or advisable to do so.
Your Right to Receive the Shares Underlying your ADSs
You have the right to cancel your ADSs and withdraw the underlying Class A ordinary shares at any time
except:
(cid:0) when temporary delays arise because: (1) the depositary has closed its transfer books or we have closed
our transfer books; (2) the transfer of Class A ordinary shares is blocked to permit voting at a
shareholders’ meeting; or (3) we are paying a dividend on our Class A ordinary shares;
(cid:0) when you owe money to pay fees, taxes and similar charges;
23
(cid:0) when it is necessary to prohibit withdrawals in order to comply with any laws or governmental
regulations that apply to ADSs or to the withdrawal of ordinary shares or other deposited securities, or
(cid:0) other circumstances specifically contemplated by Section I.A.(l) of the General Instructions to Form F-
6 (as such General Instructions may be amended from time to time); or
(cid:0) for any other reason if the depositary or we determine, in good faith, that it is necessary or advisable to
prohibit withdrawals.
The depositary shall not knowingly accept for deposit under the deposit agreement any Class A ordinary
shares or other deposited securities required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such ordinary shares.
This right of withdrawal may not be limited by any other provision of the deposit agreement.
Direct Registration System
In the deposit agreement, all parties to the deposit agreement acknowledge that the DRS and Profile
Modification System, or Profile, will apply to uncertificated ADSs upon acceptance thereof to DRS by DTC. DRS
is the system administered by DTC pursuant to which the depositary may register the ownership of uncertificated
ADSs, which ownership shall be evidenced by periodic statements issued by the depositary to the ADS holders
entitled thereto. Profile is a required feature of DRS which allows a DTC participant, claiming to act on behalf of
an ADS holder, to direct the depositary to register a transfer of those ADSs to DTC or its nominee and to deliver
those ADSs to the DTC account of that DTC participant without receipt by the depositary of prior authorization
from the ADS holder to register such transfer.
24
Exhibit 4.5
Sun Qin
Chen Lei
Hangzhou Weimi Network Technology Co., Ltd
and
Hangzhou Aimi Network Technology Co., Ltd
Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement
September 23, 2019
Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement
This Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement (this “Agreement”) is executed by and among the
following parties on September 23, 2019:
(1) Hangzhou Weimi Network Technology Co., Ltd, a wholly foreign-owned enterprise incorporated and existing under the Laws of
the People’s Republic of China with its registered address at Room 7B14, Building 1, No. 39 Yi Le Road, Xihu District,
Hangzhou (hereinafter referred to as the “WFOE”);
(2) Sun Qin, with the ID No. ***;
(3) Chen Lei, with the ID No. ***;
(Sun Qin and Chen Lei shall be referred to as the “Shareholder(s)” respectively and collectively)
(4) Hangzhou Aimi Network Technology Co., Ltd, a company with its registered address at Room 7B13, Building 1, No. 39 Yi Le
Road, Xihu District, Hangzhou (hereinafter referred to as the “Company”).
(In this Agreement, each of the Parties above shall be referred to as a “Party” respectively, and they shall be collectively referred
to as the “Parties”)
WHEREAS:
1. The Shareholders are the shareholders currently on record of the Company aggregately holding 100% of the equity interest in the
Company, among which Sun Qin holds 13.43% and Chen Lei holds 86.57% of the equity interest in the Company; and
1
2. Sun Qin, Chen Lei, the Company, the WFOE and other relevant parties entered into a Third Amended and Restated
Shareholders’ Voting Rights Proxy Agreement on April 25, 2018 (hereinafter referred as the “Original Agreement”).
3. The Shareholders intend to respectively entrust the individual designated by the WFOE to exercise all their shareholders’ voting
rights in the Company, and the WFOE intends to designate an individual to accept such entrustment. Upon amicable discussion
and negotiation, the Parties agree as follows:
1. Voting Rights Entrustment
1.1 The Shareholders each hereby irrevocably undertake to respectively execute a proxy letter (as set out in Schedule I to this
Agreement, hereinafter referred to as the “Proxy Letter”), to authorize the individual then designated by the WFOE (hereinafter
referred to as the “Proxy”) to exercise on their behalf the following rights they are respectively entitled to as shareholders of the
Company and in accordance with the articles of association of the Company effective then (hereinafter collectively referred to as
the “Proxy Rights”):
(1) attending the shareholders’ meetings as the agent of each Shareholder;
(2) exercising voting rights on all issues required to be discussed and resolved by the shareholders’ meeting (including but
without limitation to the appointment, election and removal of directors and supervisors, deciding the appointment or
dismissal of general manager, deputy general manager, financial manager and other senior management), and the sale or
transfer of the Shareholder’s equity interest in the Company in whole or in part on behalf of each Shareholder;
(3) proposing to convene the interim shareholders’ meetings; and
(4) other shareholders’ voting rights under the articles of association of the Company (including any other shareholders’ voting
rights stipulated after an amendment to such articles of association).
1.2 The aforesaid entrustment and authorization are subject to the consent by the WFOE of such entrustment and authorization and
that the Proxy is a citizen of the People’s Republic of China. When and only when the WFOE issues a written notice to each
Shareholder to replace the Proxy, each Shareholder shall immediately authorize the other PRC citizen then appointed by the
WFOE to exercise the aforesaid Proxy Rights, and the new entrustment will replace the original entrustment immediately upon
being made, except for which, each Shareholder shall not revoke the entrustment and authorization granted to the Proxy.
2
1.3 The Proxy will carefully and diligently exercise the entrusted rights and perform the entrusted duties within the scope of
authorization under this Agreement; the Shareholders each acknowledge and assume corresponding liabilities for any legal
consequences arising out of the exercise by the Proxy of the aforesaid Proxy Rights.
1.4 The Shareholders each hereby acknowledge that, the Proxy shall exercise the aforesaid Proxy Rights with prior notice but without
prior consent of the Shareholders. The Proxy shall timely inform the Shareholders after each resolution or each proposal on
convening an interim shareholders’ meeting is adopted.
2. Right to Information
For the purpose of exercising the Proxy Rights under this Agreement, the Proxy is entitled to be informed of the operations,
business, customers, finance, employees and any other relevant information of the Company and to access relevant materials of
the Company, and the Company shall provide full cooperation with respect thereto.
3. Exercise of the Proxy Rights
3.1 The Shareholders each shall provide full assistance in respect of the exercise by the Proxy of the Proxy Rights, including, when
necessary (for example, in order to meet the requirements of submitted documents needed for approval of, registration, and filing
with governmental authorities), timely executing the resolutions of the shareholders’ meeting adopted by the Proxy or other
relevant legal documents.
3.2 If at any time during the term of this Agreement, the grant or exercise of the Proxy Rights under this Agreement cannot be
realized for any reason (other than default of the Shareholders or the Company), the Parties shall immediately seek an alternative
method closest possible to the provisions which cannot be realized and shall execute a supplementary agreement when necessary
to amend or modify the terms of this Agreement so that the purpose of this Agreement will continue to be achieved.
3
4. Exemption of Liability and Compensation
4.1 The Parties acknowledge that under no circumstances shall the WFOE be required to assume any liability or make any economic
compensation or compensation in other aspects to the other Parties or to any third party in respect of the exercise of the Proxy
Rights under this Agreement by the designated Proxy of the WFOE.
4.2 The Shareholders each agree to indemnify and hold harmless the WFOE against all actual or potential losses arising from the
exercise of the Proxy Rights by the Proxy, including but without limitation to any loss arising out of litigations, pursuits for
recovery, arbitrations or claims for compensation initiated by any third party against the WFOE, or administrative investigations
or penalties by governmental authorities, except for those losses resulting from the willful conduct or gross negligence of the
WFOE.
5. Representations and Warranties
5.1 The Shareholders hereby severally but not jointly represent and warrant that:
1. They are natural/legal persons with full civil capacity; they have full and independent legal status and legal capacity, and
may sue or be sued as an independent party.
2. They have full power and authority to execute and deliver this Agreement and all other documents to be executed by it in
connection with the transactions contemplated in this Agreement as well as full power and authority to consummate the
transactions contemplated in this Agreement.
3. This Agreement is lawfully and duly executed by and delivered to them. This Agreement constitutes lawful and binding
obligations enforceable against them in accordance with the terms of this Agreement.
4. They are lawful shareholders on record of the Company as of the date of this Agreement; other than the rights created under
this Agreement, the Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement executed among the
WFOE and them dated September 23, 2019 and the Fourth Amended and Restated Exclusive Option Agreement executed
among the Company, the WFOE and them dated September 23, 2019, the Proxy Rights are free from any third-party rights.
In accordance with this Agreement, the Proxy may fully and sufficiently exercise the Proxy Rights under the articles of
association of the Company effective then.
4
5.2 The WFOE and the Company hereby respectively represent and warrant that:
1. Each of them is a limited liability company duly registered and lawfully existing under the laws of the People’s Republic of
China with independent legal personality; it has full and independent legal status and legal capacity to execute, deliver and
perform this Agreement, and may sue or be sued as an independent party.
2. Each of them has full internal corporate power and authority to execute this Agreement and other documents to be executed
by it in connection with the transactions contemplated in this Agreement as well as full power and authority to consummate
the transactions contemplated in this Agreement.
5.3 The Company further represents and warrants that, the Shareholders constitute all lawful shareholders on record of the Company
as of the date of this Agreement. Pursuant to this Agreement, the Proxy may fully and sufficiently exercise the Proxy Rights under
the articles of association of the Company effective then.
6. Confidentiality
6.1 During the term of and after the termination of this Agreement, each Party shall maintain in strict confidence the following
information:
(1) The execution, performance of this Agreement and the contents of this Agreement;
(2) The trade secrets, proprietary information, and customer information (collectively referred to as the “Confidential Information”)
of the WFOE that it knows or receives as a result of the execution and performance of this Agreement.
Each Party shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement. Without
other Parties’ written consent, any Party shall not disclose the above Confidential Information to any third parties; otherwise it
shall bear the liability for breach of the Agreement and compensate for the losses.
6.2 After the termination of this Agreement, any Party shall return, destroy or otherwise dispose of all documents, materials or
software containing Confidential Information upon the request of the other Party and cease the use of such Confidential
Information.
6.3 Notwithstanding otherwise provided in this Agreement, the effectiveness of this section shall not be affected by the suspension or
termination of this Agreement.
5
7. Term of Agreement
7.1 This Agreement shall become effective after being executed or sealed by the Parties or executed by their legal representatives;
unless terminated in advance by written agreement of the Parties or pursuant to Section 9.1 of this Agreement, this Agreement
shall continue to be effective.
7.2 If any of the Shareholders transfers, with prior consent of the WFOE, all of his/her/its equity interest in the Company, such
Shareholder shall cease to be a party to this Agreement, provided that the obligations and undertakings of the other Parties under
this Agreement shall not be affected thereby.
8. Notice
Any notice or other correspondence required by or made pursuant to this Agreement shall be delivered in person, by registered
post, postage prepaid, by a commercial courier service or by facsimile transmission to the address of such Party as set forth below.
The dates on which notices shall be deemed effectively given shall be determined as follows:
Notices given by personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given on
the date of delivery.
Notices given by facsimile transmission shall be deemed effectively given on the date of successful transmission (as evidenced by
an automatically generated confirmation of transmission). For the purpose of notices, the addresses of the Parties are as follows:
Sun Qin
Address: ***
Tel: ***
Chen Lei
Address: ***
Tel: ***
6
Hangzhou Weimi Network Technology Co., Ltd.
Address: ***
Tel: ***
Hangzhou Aimi Network Technology Co., Ltd.
Address: ***
Tel: ***
Any Party may at any time change its address for notices by a notice delivered to the other Parties in accordance with the terms
hereof.
9. Liability for Default
9.1 The Parties agree and acknowledge that if any Party (hereinafter referred to as the “Defaulting Party”) substantially breaches any
provision of this Agreement, or substantially fails to perform any obligation under this Agreement, such shall constitute a Default
under this Agreement (hereinafter referred to as the “Default”) and any Party of the other Non-defaulting Parties (hereinafter
referred to as the “Non-defaulting Parties”) shall be entitled to require the Defaulting Party to cure such Default or take remedies
within a reasonable time period. If the Defaulting Party fails to cure such Default or take remedies within fifteen days after the
Non-defaulting Parties notify the Defaulting Party in writing and require it to cure such Default, the relevant Non-defaulting
Parties are entitled to at their absolute discretion (1) terminate this Agreement and require Defaulting Party to indemnify it for all
the damages; or (2) require the specific performance of the Defaulting Party’s obligations under this Agreement and require the
Defaulting Party to indemnify it for all the damages. For the avoidance of doubt, the Shareholders or the Company will be entitled
to terminate this Agreement pursuant to this section merely in the event of the Default of the WFOE.
7
9.2 The Parties agree and acknowledge that except for otherwise provided by laws and this Agreement, the Shareholders and the
Company shall in no event terminate this Agreement with any reason.
9.3 Notwithstanding otherwise provided in this Agreement, the effectiveness of this section shall not be affected by the dissolution or
termination of this Agreement.
10. Miscellaneous
10.1 This Agreement is made in Chinese and executed in four (4) originals. Each Party shall hold one (1) copy.
10.2 The entry into, effectiveness, performance, amendment, interpretation and termination of this Agreement shall be governed by the
laws of the People’s Republic of China.
10.3 Any dispute arising out of and in connection with this Agreement shall be settled by the Parties through amicable discussion and
negotiation and shall, in the absence of an agreement reached by the Parties within thirty days from its occurrence, be submitted
by any Party to Hangzhou Arbitration Commission for arbitration in accordance with the arbitration rules of such Commission
effective then in Hangzhou. The arbitral award shall be final and binding on the Parties to this Agreement.
10.4 No rights, power or remedies granted to each Party by any provision of this Agreement shall preclude any other rights, power or
remedies enjoyed by such Party in accordance with the laws and any other provisions under this Agreement and no exercise by a
Party of any of its rights, power and remedies shall preclude its exercise of its other rights, power and remedies.
10.5 No failure or delay by a Party in exercising any right, power or remedy pursuant to this Agreement or any laws (hereinafter
referred to as “Such Rights”) shall result in a waiver of Such Rights; and no single or partial waiver of Such Rights shall preclude
such Party from exercising Such Rights in any other manner or from exercising other Such Rights.
10.6 The section headings in this Agreement are for convenience of reference only and shall in no event be used in or affect the
interpretation of the provisions of this Agreement.
8
10.7 Each provision contained in this Agreement shall be severable and independent from any other provisions of this Agreement, and
if at any time any one or more provisions of this Agreement become invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not be affected thereby.
10.8 Any amendments or supplements to this Agreement shall be made in writing, and shall take effect only if duly executed by the
Parties to this Agreement.
10.9 Without prior written consent of the other Parties, any Party shall not transfer any of its rights and/or obligations under this
Agreement to any third party.
10.10 This Agreement shall be binding upon the lawful successors of the Parties.
[Intentionally left blank below]
9
(This page is intentionally left as the signature page of Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement)
IN WITNESS WHEREOF, this Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement has been executed by the
Parties as of the date and at the place first above written.
Sun Qin
Signature:
/s/ Sun Qin
Hangzhou Weimi Network Technology Co., Ltd.
(Seal)
Signature:
/s/ Sun Qin
Name:
Sun Qin
Title:
Legal Representative
Hangzhou Aimi Network Technology Co., Ltd.
(Seal)
Signature:
/s/ Sun Qin
Name:
Sun Qin
Title:
Legal Representative
(This page is intentionally left as the signature page of Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement)
IN WITNESS WHEREOF, this Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement has been executed by the
Parties as of the date and at the place first above written.
Chen Lei
Signature: /s/ Chen Lei
Schedule I:
Proxy Letter
This Proxy Letter (hereinafter referred to as the “Proxy Letter”), is executed by Sun Qin (ID No. ***) on , and issued to
(ID No. ) (hereinafter referred to as the “Proxy”) as designated by Hangzhou Weimi Network Technology Co., Ltd (the “WFOE”).
I, Sun Qin, hereby grant to the Proxy a general proxy power authorizing the Proxy to exercise as my agent and in the name of me, the
following rights I enjoy as a shareholder of Hangzhou Aimi Network Technology Co., Ltd (hereinafter referred to as the “Company”):
(1) as my agent, attending the shareholders’ meetings;
(2) exercising on behalf of me voting rights on all issues required to be discussed and resolved by the shareholders’ meeting
(including but without limitation to the appointment, election and removal of directors and supervisors, deciding the
appointment or dismissal of general manager, deputy general manager, financial manager and other senior management), and
the sale or transfer of my equity interest in the Company in whole or in part;
(3) as my agent, proposing to convene the interim shareholders’ meetings; and
(4) as my agent for other shareholders’ voting rights under the articles of association of the Company (including any other
shareholders’ voting rights stipulated after an amendment to such articles of association).
I hereby irrevocably confirm that unless the WFOE issues an instruction to me requesting the replacement of the Proxy, this Proxy Letter
shall remain valid until the expiry or advance termination of the Fourth Amended and Restated Shareholders’ Voting Rights Proxy
Agreement executed by and among the WFOE, the Company and the shareholders of the Company dated .
This Letter is hereby issued.
Name: Sun Qin
Signature:
Date:
Proxy Letter
This Proxy Letter (hereinafter referred to as the “Proxy Letter”), is executed by Chen Lei (ID No. ***) on , and issued to
(ID No. ) (hereinafter referred to as the “Proxy”) as designated by Hangzhou Weimi Network Technology Co., Ltd (the “WFOE”).
I, Chen Lei, hereby grant to the Proxy a general proxy power authorizing the Proxy to exercise as my agent and in the name of me, the
following rights I enjoy as a shareholder of Hangzhou Aimi Network Technology Co., Ltd (hereinafter referred to as the “Company”):
(1) as my agent, attending the shareholders’ meetings;
(2) exercising on behalf of me voting rights on all issues required to be discussed and resolved by the shareholders’ meeting
(including but without limitation to the appointment, election and removal of directors and supervisors, deciding the
appointment or dismissal of general manager, deputy general manager, financial manager and other senior management), and
the sale or transfer of my equity interest in the Company in whole or in part;
(3) as my agent, proposing to convene the interim shareholders’ meetings; and
(4) as my agent for other shareholders’ voting rights under the articles of association of the Company (including any other
shareholders’ voting rights stipulated after an amendment to such articles of association).
I hereby irrevocably confirm that unless the WFOE issues an instruction to me requesting the replacement of the Proxy, this Proxy Letter
shall remain valid until the expiry or advance termination of the Fourth Amended and Restated Shareholders’ Voting Rights Proxy
Agreement executed by and among the WFOE, the Company and the shareholders of the Company dated .
This Letter is hereby issued.
Name: Chen Lei
Signature:
Date:
Exhibit 4.6
Sun Qin
Chen Lei
Hangzhou Weimi Network Technology Co., Ltd.
and
Hangzhou Aimi Network Technology Co., Ltd.
Fourth Amended and Restated Equity Pledge Agreement
September 23, 2019
Fourth Amended and Restated Equity Pledge Agreement
This Fourth Amended and Restated Equity Pledge Agreement (this “Agreement”) is executed by and among the following parties on
September 23, 2019
(1) Sun Qin, with the ID No. ***;
(2) Chen Lei, ID No. ***;
(Sun Qin and Chen Lei are hereinafter respectively and collectively referred to as the “Pledgor(s)”.)
(3) Hangzhou Weimi Network Technology Co., Ltd. (the “Pledgee”), with its registered address at ***; and
(4) Hangzhou Aimi Network Technology Co., Ltd. (the “Company”), with its registered address at ***.
(In this Agreement, each of the above parties shall be respectively referred to as a “Party”, and they shall be collectively referred to as
the “Parties”.)
Whereas:
1. The Pledgors are the shareholders on record of the Company, aggregately holding 100% of the equity interest in the Company
(the “Company Equity Interest”). As of the date hereof, their capital contributions in the registered capital of the Company and
shareholding percentage are set out in Schedule I hereto.
2. Sun Qin, Chen Lei, Zhang Zhen, Linzhi Tencent Technology Co., Ltd., the Pledgee and the Company entered into the Third
Amended and Restated Equity Pledge Agreement on April 25, 2018 (the “Original Agreement”).
3. In accordance with the Fourth Amended and Restated Exclusive Option Agreement (the “Fourth Amended and Restated
Exclusive Option Agreement”) executed on September 23, 2019 by and among the Parties, the Pledgors shall, to the extent
permitted by the PRC Laws and at the request of the Pledgee, transfer all or part of their equity interest in the Company and/or
all or part of the assets of the Company to the Pledgee and/or any other entity or individual designated by it.
1
4. In accordance with the Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement (the “Fourth Amended
and Restated Shareholders’ Voting Rights Proxy Agreement”) executed on September 23, 2019 by and among the Parties,
the Pledgors have granted full authority to the persons designated by the Pledgee to exercise all of their shareholders’ voting
rights in the Company on behalf of the Pledgors.
5. In accordance with the Exclusive Consulting and Services Agreement (the “Services Agreement”) executed in June 2015 by
and between the Company and the Pledgee, the Company has, on an exclusive basis, engaged the Pledgee to provide it with
relevant technical consulting and services and agreed to pay corresponding service fees to the Pledgee for such services.
6. As security for the performance of their Contractual Obligations (as defined below) and the repayment of the Secured
Indebtedness (as defined below) by the Pledgors and the Company, the Pledgors intend to pledge all their Company Equity
Interest to the Pledgee and offer the Pledgee with right of first ranking repayment.
Now, Therefore, upon mutual discussion and negotiation, the Parties agree as follows:
1. Definition
1.1. Unless otherwise required by the context, the following terms shall have the following meanings in this Agreement:
“Contractual Obligations”:
“Secured Indebtedness”:
means all of the Pledgors’ and/or the Company’s contractual obligations under the
Services Agreement, Fourth Amended and Restated Exclusive Option Agreement and
Fourth Amended and Restated Shareholders’ Voting Rights Proxy Agreement
(collectively referred to as “Transaction Agreements”).
means all losses of direct, indirect, derivative or predictable benefits suffered as a result
of any Event of Default (as defined below) of the Pledgors and/or the Company and all
costs incurred by the Pledgee for enforcing the performance of the Contractual
Obligations by the Pledgors and/or the Company.
2
“Event of Default”:
“Pledge”:
“PRC Laws”:
means the breach by any Pledgors or the Company of any contractual obligations under
the Contractual Obligations, the Transaction Agreements and/or this Agreement.
means all the equity interest in the Company lawfully owned by the Pledgors on the
date of this Agreement and pledged pursuant to this Agreement to the Pledgee as
security for the performance of the Contractual Obligations and any increased capital
contributions and dividends under Sections 2.6 and 2.7 of this Agreement.
means the then effective laws, administrative regulations, administrative rules, local
regulations, judicial interpretations and other binding regulatory documents of the
People’s Republic of China.
1.2. In this Agreement, any reference to any PRC Laws shall be deemed to include (i) a reference to such PRC Laws as modified,
amended, supplemented or reenacted, effective before or after the date of this Agreement; and (ii) a reference to any other
decisions, circulars or rules made pursuant to such PRC Laws or effective as a result of such PRC Laws.
1.3. Unless otherwise stated in the context of this Agreement, a reference to a provision, clause, section or paragraph shall refer to
a corresponding provision, clause, section or paragraph of this Agreement.
2. Equity Pledge
2.1. The Pledgors hereby agree to pledge, in accordance with the terms of this Agreement, their lawfully owned and disposable
Pledge, to the Pledgee as the security for the performance of the Contractual Obligations and the repayment of the Secured
Indebtedness. The Company hereby agrees that the Pledgors who hold its equity to pledge the Pledge to the Pledgee in
accordance with the terms of this Agreement.
2.2. The Pledgors shall record the equity pledge arrangement (“Equity Pledge”) under this Agreement on the Company’s
shareholder register upon the execution date of this Agreement, and provide the record evidence to the Pledgee with a form
satisfied to the Pledgee, and provide the Pledgee with the shareholders’ resolutions passed and signed by the Pledgors in the
form as set out in Schedule III of this Agreement within 15 days from the execution date of this Agreement or within other time
periods agreed by the Parties, and provide other industrial and commercial registration certificate which reflects the Equity
Pledge under this Agreement. This Agreement shall prevail if there is any discrepancy between the agreement used to complete
the industrial and commercial registration of the Equity Pledge and this Agreement.
3
2.3. During the term of this Agreement, the Pledgee shall not be liable in whatsoever manner for any decrease in the value of the
Pledge and the Pledgors are not entitled to seek any form of recourse or file any claims against the Pledgee, except where such
decrease arises out of any willful conduct of the Pledgee or out of its gross negligence which has an immediate causal link with
such result.
2.4. Subject to Section 2.3 above, if there is such possibility of significant decrease in the value of the Pledge as to impair the
rights of the Pledgee, the Pledgee may demand the Pledgors to provide other assets as security, and at any time auction or sell
the Pledge on behalf of the Pledgors and may, as agreed with the Pledgors, apply the proceeds from such auction or sale
towards advance repayment of the Secured Indebtedness, or deposit such proceeds with a notary organ where the Pledgee is
located (any costs thereby incurred shall be entirely borne by the Pledgee).
2.5. The Pledgee is entitled to the first order of security interest to the Pledge. When any Event of Default occurs, the Pledgee has
the right to dispose of the Pledge in the form applied in Section 4 of this Agreement.
2.6. The Pledgors may increase the capital of the Company with the Pledgee’s prior written consent. The amount of capital
contributed by the Pledgors in the Company’s registered capital as a result of the capital increase of the Company is also
automatically attributed to the Pledge.
2.7. The dividends or bonus which the Pledgors receive in respect of the Pledge shall be deposited in the account designated by the
Pledgee, supervised by the Pledgee, as the pledge firstly used for the repayment of the Secured Indebtedness.
2.8. Upon the occurrence of any Event of Default, the Pledgee shall be entitled to dispose of the Pledge of any Pledgors in such
manner as provided in Section 4 of this Agreement.
3. Release of Equity Pledge
After full and complete performance of all the Contractual Obligations and full repayment of all the Secured Indebtedness by
the Pledgors and the Company, the Pledgee shall, at the request of the Pledgors, release the Equity Pledge under this Agreement
and cooperate with the Pledgors to deregister and release the Equity Pledge with the administration for industry and commerce.
The Pledgee shall bear the reasonable costs incurred in connection with the release of the Equity Pledge.
4
4. Disposal of Pledge
4.1. The Pledgors, the Company and the Pledgee hereby agree that upon occurrence of any Event of Default, the Pledgee shall, upon
giving a written notice to the Pledgors, be entitled to exercise all rights and power of remedies for breach of contract under the
PRC Laws, the Transaction Agreements and this Agreement, including without limitation the right to auction or sell the Pledge
and to be compensated on a preferential basis with the proceeds thereof. The Pledgee shall not be held liable for any losses from
its reasonable exercise of such rights and power.
4.2. The Pledgee shall be entitled to appoint in writing its counsels or other agents to exercise any and all of its foregoing rights and
power and the Pledgors and the Company shall not raise objections thereto.
4.3. The Pledgors shall bear the reasonable costs incurred in connection with the exercise of any or all of the aforesaid rights and
power by the Pledgee and the Pledgee is entitled to deduct such costs on an actual basis from the proceeds obtained from such
exercise of rights and power.
4.4. The proceeds obtained from the exercise by the Pledgee of its rights shall be applied in the following order of precedence:
(i) payment of all costs arising out of the disposal of the Pledge and the exercise by the Pledgee of its rights (including fees
paid to its counsels and agents);
(ii) payment of the taxes payable in connection with the disposal of the Pledge; and
(iii) repayment of the Secured Indebtedness to the Pledgee;
and any balance after the deduction of the aforesaid payments shall either be returned by the Pledgee to the Pledgors or any
other person who is entitled to such balance under relevant laws and regulations or be deposited with a notary organ where the
Pledgee is located (any costs thereby incurred shall be entirely borne by the Pledgors).
4.5. The Pledgee shall be entitled to exercise, at its option, concurrently or successively, its right of pledge towards the equity
interest in the Company held by any of the Pledgors, or any of remedies for breach of contract it is entitled to. The Pledgee shall
not be required to firstly exercise other remedies for breach of contract prior to exercising its right to auction or sell the Pledge
under this Agreement. Neither the Pledgors nor the Company shall object to whether the Pledgee exercises part of its pledge
right or to the sequence of exercising the pledge right by the Pledgee.
5
5. Fees and Expenses
All actual costs and expenses arising in connection with the creation of the equity pledge under this Agreement, including
without limitation the stamp duty, any other taxes and all legal fees, shall be borne by the Parties respectively.
6. Continuity and No Waiver
The Equity Pledge hereunder shall be a continuous security and shall remain valid until the full performance of the Contractual
Obligations, and the full repayment of the Secured Indebtedness. Neither exemption or grace period granted by the Pledgee to
the Pledgors in respect of any breach, nor delay by the Pledgee in exercising any of its rights under the Transaction Agreements
and this Agreement, shall affect the rights of the Pledgee under this Agreement, relevant PRC Laws and the Transaction
Agreements to demand at any time thereafter the strict performance by the Pledgors of the Transaction Agreements and this
Agreement, or the rights the Pledgee may be entitled to due to any subsequent breach by the Pledgors of the Transaction
Agreements and/or this Agreement.
7. Representations and Warranties of the Pledgors
The Pledgors hereby severally but not jointly represent and warrant to the Pledgee that:
7.1. They are natural persons with full civil capacity or corporate legal person; they have full and independent legal status and legal
capacity, and have been duly authorized to execute, deliver and perform this Agreement, and may sue or be sued as an
independent party.
7.2. The Company in which they hold equity interest is a limited liability company lawfully incorporated and existing, having
independent legal person qualification. It has full and independent legal status and legal capacity to execute, deliver and
perform this Agreement, and may sue or be sued as an independent party. It has full power and authorization to execute and
deliver this Agreement, all other documents they will sign related to the transactions contemplated under this Agreement, and
has full power and authorization to complete the transactions contemplated under this Agreement.
6
7.3. All reports, documents and information provided by the Pledgors to the Pledgee after the date of this Agreement with respect
to the Pledgors and all matters required by this Agreement are true, correct and valid in all substantial respects as of the date of
such provision.
7.4. All reports, documents and information provided by the Pledgors to the Pledgee after the date of this Agreement with respect
to the Pledgors and all matters required by this Agreement are true, correct and valid in all substantial respects as of the date of
such provision.
7.5. As of the date of this Agreement, the Pledgors are the only lawful owners of the Pledge free from any existing dispute in
relation to the ownership thereof. The Pledgors have the right to dispose of the Pledge or any part thereof.
7.6. Other than the security interest created on the Pledge under this Agreement and the rights created under the Transaction
Agreements, the Pledge is free from any other security interest or third party rights.
7.7. The Pledge can be lawfully pledged and transferred, and the Pledgors have full rights and power to pledge the Pledge to the
Pledgee in accordance with the terms of this Agreement.
7.8. This Agreement is lawfully and duly executed and delivered by the Pledgors and constitutes lawful and binding obligations of
the Pledgors.
7.9. Any consents, permissions, waivers or authorizations by any third party or any approvals, licenses or exemptions by or any
registration or filing formalities with any governmental body (if required by laws), necessary for the execution and performance
of this Agreement and the Equity Pledge under this Agreement, have been obtained or handled and will remain in full force
during the term of this Agreement.
7.10. The execution and performance of this Agreement by the Pledgors do not violate or conflict with any law applicable to the
Pledgors in effect, any agreement to which the Pledgors are a party or by which their assets are bound, any court judgment, any
arbitral award, or any decision of any administrative authority.
7.11. The Equity Pledge under this Agreement constitutes a first order of security interest on the Pledge.
7.12. All taxes and fees payable in connection with obtaining the Pledge have been paid in full by the Pledgors.
7.13. There are no such pending, or to the knowledge of the Pledgors, threatened suits, arbitrations, or other legal proceedings or
claims before any court or arbitral tribunal, or administrative proceedings, or other legal proceedings or claims before any
governmental body or administrative authority against the Pledgors or their properties and the Pledge, that will have a material
adverse effect on the economic conditions of the Pledgors or the Pledgors’ ability to perform their obligations and security
liability under this Agreement.
7
7.14. The Pledgors hereby warrant to the Pledgee that the aforesaid representations and warranties will remain true and correct and
will be fully complied with under all circumstances prior to the full performance of the Contractual Obligations and the full
repayment of the Secured Indebtedness.
8. Representations and Warranties of the Company
The Company hereby represents and warrants to the Pledgee that:
8.1. It is a limited liability company lawfully incorporated and existing according to the PRC Laws; it has independent legal
personality; it has full and independent legal status and capacity to execute, deliver and perform this Agreement, and may sue
or be sued as an independent party.
8.2. All reports, documents and information provided by the Company to the Pledgee prior to the date of this Agreement with
respect to the Pledge and all matters required by this Agreement are true, correct and valid in all substantial respects as of the
date of this Agreement.
8.3. All reports, documents and information provided by the Company to the Pledgee after the date of this Agreement with respect
to the Pledge and all matters required by this Agreement are true, correct and valid in all substantial respects as of the date of
such provision.
8.4. It has full powers and authorization to execute and deliver this Agreement and all other documents it will sign related to the
transactions contemplated under this Agreement, and has the full power and authorization to complete the transactions
contemplated under this Agreement.
8.5. There are no such pending, or to the knowledge of the Company, threatened suits, arbitrations, or other legal proceedings or
claims before any court or arbitral tribunal, or administrative proceedings, or other legal proceedings or claims before any
governmental body or administrative authority against the Company or its assets (including without limitation any Pledge), that
will have a material adverse effect on the economic conditions of the Company or the Company’s ability to perform its
obligations and security liability under this Agreement.
8.6. The Company hereby agrees to assume joint and several liability with its relevant Pledgors’ with respect to their
representations and warranties made under Sections 7.5, 7.6, 7.7, 7.9 and 7.11 of this Agreement to the Pledgee.
8
8.7. The Company hereby warrants to the Pledgee that the aforesaid representations and warranties will remain true and correct and
will be fully complied with under all circumstances prior to the full performance of the Contractual Obligations and the full
repayment of the Secured Indebtedness.
9. Undertakings by the Pledgors
The Pledgors hereby severally but not jointly undertake to the Pledgee that:
9.1. Without prior written consent of the Pledgee, the Pledgors shall not create or permit to be created any new pledge or any other
security interest on the Pledge, and any pledge or other security interest created on all or part of the Pledge without prior written
consent of the Pledgee shall be null and void.
9.2. Without prior written notice to and prior written consent of the Pledgee, the Pledgors shall not transfer the Pledge, otherwise all
transfer of the Pledge shall be null and void. For transfer of the Pledge with written consent of the Pledgee, the proceeds
thereby received shall be first applied towards advance repayment of the Secured Indebtedness to the Pledgee or deposited with
a third party agreed with the Pledgee.
9.3. Where any suits, arbitrations or other legal proceedings or claims arise which are likely to have an adverse effect on the
Pledgors’ or the Pledgee’s interests or the Pledge under the Transaction Agreements and this Agreement, the Pledgors
undertake that they will promptly and timely send a written notice to the Pledgee and will, in accordance with the reasonable
request of the Pledgee, take all necessary measures to ensure the Pledgee’s rights and interests of pledge regarding the Pledge.
9.4. The Pledgors shall not conduct or permit to be conducted any action or omission which is likely to have a material adverse
effect on the Pledgee’s interests or the Pledge under the Transaction Agreements and this Agreement. The Pledgors shall waive
their right of first refusal in the realization of the pledge right by the Pledgee.
9.5. The Pledgors undertake to, in accordance with the reasonable request of the Pledgee, take all necessary measures and execute
all necessary documents (including without limitation any supplement to this Agreement) to ensure the Pledgee’s rights and
interests of pledge regarding the Pledge as well as the exercise and realization of such rights and interests.
9.6. If there is any transfer of the Pledge due to the exercise of the pledge right under this Agreement, the Pledgors undertake to
take all measures to realize such transfer.
9
9.7. If dissolution or liquidation is required according to compulsory provisions in applicable laws, the Pledgors shall, to the extent
permitted by the PRC Laws, grant to the Pledgee or the entity/individual designated by it any interests lawfully distributed from
the Company after the dissolution and liquidation of the Company in accordance with relevant laws.
10. Undertakings by the Company
10.1. If any consents, permissions, waivers and authorizations by any third party or any approvals, permission, exemption by or any
registration or filing formalities with any governmental body (if required by laws), are required for the execution and
performance of this Agreement and the equity pledge under this Agreement, the Company will dedicate to help obtain and
maintain them in full force during the term of this Agreement.
10.2. Without prior written consent of the Pledgee, the Company will not assist or permit the Pledgors to establish any new pledge or
any other security interest on the Pledge.
10.3. Without prior written consent of the Pledgee, the Company will not assist or permit the Pledgors to transfer the Pledge.
10.4. Where any suits, arbitrations or other legal proceedings or claims arise, which are likely to have an adverse effect on the
Company, the Company Equity Interest as the Pledge, or the Pledgee’s interests under the Transaction Agreements and this
Agreement, the Pledgors undertake that they will promptly and timely send a written notice to the Pledgee and will, in
accordance with the reasonable request of the Pledgee, take all necessary measures to ensure the Pledgee’s rights and interests
of pledge regarding the Pledge.
10.5. The Company shall not conduct or permit to be conducted any act or action which is likely to have an adverse effect on the
Pledgee’s interests under the Transaction Agreements and this Agreement or the Pledge.
10.6. The Company shall provide the Pledgee with the Company’s financial statements for the previous quarter within the first
month of each calendar quarter, including without limitation balance sheet, income statement and cash flow statement.
10.7. The Company undertakes to, in accordance with the reasonable request of the Pledgee, take all necessary measures and execute
all necessary documents (including without limitation any supplement to this Agreement) to ensure the Pledgee’s rights and
interests of pledge regarding the Pledge as well as the lawful and contractual exercise and realization of such rights and
interests.
10
10.8. If there is any transfer of the Pledge due to the exercise of the pledge right under this Agreement, the Company undertakes to
take all measures to realize such transfer.
11. Change of Circumstances
As a supplement and without contravening other provisions of the Transaction Agreements and this Agreement, if at any time and as a
result of any promulgation of or amendment to any PRC Laws, regulations or rules, or of any change in the interpretation or application
of such laws, regulations or rules, or of any change in relevant registration procedures, the Pledgee takes it that the maintenance of the
validity of this Agreement and/or the disposal of the Pledge in the manner provided in this Agreement become illegal or contravenes
such laws, regulations or rules, the Pledgors and the Company shall immediately take any actions and/or execute any agreements or other
documents upon the Pledgee’s written instructions and in accordance with its reasonable request so as to:
(1) maintain the validity of this Agreement;
(2) facilitate the disposal of the Pledge in the manner provided under this Agreement; and/or
(3) maintain or realize the security created or purported to be created under this Agreement.
12. Confidentiality
12.1. During the term of and after the termination of this Agreement, each Party shall maintain in strict confidence the following
information:
(1) The execution, performance of this Agreement and the contents of this Agreement;
(2) The trade secrets, proprietary information, and customer information (collectively referred to as “Confidential
Information”) of the wholly owned company that it knows or receives as a result of the execution and performance of
this Agreement.
Each Party shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement.
Without other Parties’ written consent, any Party shall not disclose the above Confidential Information to any third parties;
otherwise it shall bear the liability for breach of the Agreement and compensate for the losses.
11
12.2. After the termination of this Agreement, any Party shall return, destroy or otherwise dispose of all documents, materials or
software containing Confidential Information upon the request of the other Party and cease the use of such Confidential
Information.
12.3. Notwithstanding otherwise provided in this Agreement, the effectiveness of this section shall not be affected by the dissolution
or termination of this Agreement.
13. Effectiveness and Term of this Agreement
13.1. This Agreement shall become effective after being executed or sealed by the Parties or executed by their legal representatives.
13.2. The term of this Agreement shall continue until the Contractual Obligations are fully performed and the Secured Indebtedness
is fully repaid.
14. Notice
Any notice or other correspondence required by or made pursuant to this Agreement shall be delivered in person, by registered
post, postage prepaid, by a commercial courier service or by facsimile transmission to the address of such Party as set forth
below. The dates on which notices shall be deemed effectively given shall be determined as follows:
Notices given by personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given
on the date of delivery.
Notices given by facsimile transmission shall be deemed effectively given on the date of successful transmission (as evidenced
by an automatically generated confirmation of transmission).
For the purpose of notices, the addresses of the Parties are as follows:
Pledgor: Sun Qin
Address: ***
Tel.: ***
Pledgor: Chen Lei
Address: ***
Tel.: ***
12
Pledgee: Hangzhou Weimi Network Technology Co., Ltd.
Address: ***
Tel.: ***
Company: Hangzhou Aimi Network Technology Co., Ltd.
Address: ***
Tel.: ***
Any Party may at any time change its address for notices by a notice delivered to the other Parties in accordance with the terms
hereof.
15. Miscellaneous
15.1. Without prior written consent of the Pledgee, the Pledgors or the Company shall not transfer any rights, obligations or
liabilities under this Agreement to any third parties. However, the Pledgee may, without prior consent of the Pledgors or the
Company and with a notice to the Pledgors and the Company, transfer its rights, obligations or liabilities under this Agreement
to any third parties. The successors or permitted transferees (if any) of the Parties shall be obligated to continue to perform the
Pledgors’ and the Company’s respective obligations under this Agreement.
15.2. The amount of the Secured Indebtedness shall be determined by the Parties through negotiation and shall constitute the
conclusive evidence for the Secured Indebtedness under this Agreement.
15.3. This Agreement is made in Chinese and executed in four (4) originals. Each Party shall hold one (1) copy, and the number of
the executed original copies may be increased accordingly for the purpose of registration or filing (if required).
13
15.4. The entry into, effectiveness, performance, amendment, interpretation and termination of this Agreement shall be governed by
the PRC Laws.
15.5. In addition to the written amendments, additions, and amendments made after the signing of this Agreement, this Agreement
constitutes the entire contract reached by the Parties to this Agreement in relation to the matters referred to in this Agreement,
and supersedes any prior agreement with the matters referred to in this Agreement. All oral or written negotiations,
representations and contracts, including but not limited to the Original Agreement.
15.6. Any dispute arising out of or in connection with this Agreement shall be settled by the Parties through consultations and shall,
in the absence of an agreement being reached by the Parties within thirty (30) days from its occurrence, be submitted by any
Party to Hangzhou Arbitration Commission for arbitration in accordance with the arbitration rules of Hangzhou Arbitration
Commission. The arbitral award shall be final and binding on the Parties to this Agreement.
15.7. No rights, power or remedies granted to each Party by any provision of this Agreement shall preclude any other rights, power
or remedies enjoyed by such Party in accordance with the laws and any other provisions under this Agreement and no exercise
by a Party of its rights, power and remedies shall preclude its exercise of its other rights, power and remedies.
15.8. No failure or delay by a Party in exercising any rights, power or remedies (“Such Rights”) pursuant to this Agreement or any
laws shall result in a waiver of Such Rights; and no single or partial waiver of Such Rights shall preclude such Party from
exercising Such Rights in any other manner or from exercising other Such Rights.
15.9. The section headings in this Agreement are for convenience of reference only and shall in no event be used in or affect the
interpretation of the provisions of this Agreement.
15.10. Each provision contained in this Agreement shall be severable and independent from any other provisions of this Agreement,
and if at any time any one or more provisions of this Agreement become invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
15.11. Any amendments or supplements to this Agreement shall be made in writing and shall take effect only if duly signed/sealed by
the Parties to this Agreement, except for the Pledgee’s transfer of its rights under this Agreement in accordance with
Section 15.1.
14
15.12. This Agreement shall be binding upon the lawful successors of the Parties.
15.13. Concurrently with the signing of this Agreement, the Pledgors may separately sign a power of attorney (as set out in Schedule
II, the “Power of Attorney”), and authorize any person designated by them to sign any and all legal documents required for
the Pledgee to exercise its rights under this Agreement. Such Power of Attorney shall be placed in the custody of the Pledgee,
and the pledgee may submit the Power of Attorney to the relevant government department at any time when necessary.
[Intentionally left blank below]
15
(This page is intentionally left as the signature page of the Fourth Amended and Restated Equity Pledge Agreement)
IN WITNESS WHEREOF, this Fourth Amended and Restated Equity Pledge Agreement has been executed by the Parties as of the
date and at the place first above written.
Sun Qin
Signature: /s/ Sun Qin
Hangzhou Weimi Network Technology Co., Ltd.
(Seal)
Signature: /s/ Sun Qin
Name:
Title:
Sun Qin
Legal Representative
Hangzhou Aimi Network Technology Co., Ltd.
(Seal)
Signature: /s/ Sun Qin
Name:
Title:
Sun Qin
Legal Representative
(This page is intentionally left as the signature page of the Fourth Amended and Restated Equity Pledge Agreement)
IN WITNESS WHEREOF, this Fourth Amended and Restated Equity Pledge Agreement has been executed by the Parties as of the
date and at the place first above written.
Chen Lei
Signature:
/s/ Chen Lei
Schedule I:
Company Name: Hangzhou Aimi Network Technology Co., Ltd.
Basic Information of the Company
Registered Address: ***
Registered Capital: 1,000,000 RMB
Legal Representative: Sun Qin
Shareholding Structure:
Name of the Shareholder
Sun Qin
Chen Lei
Total
Amount of Capital
Contribution (RMB)
Shareholding
Percentage
134,300
865,700
1,000,000
13.43%
86.57%
100%
Schedule II:
Form of Power of Attorney
I, Sun Qin, hereby irrevocably authorize , with the Identity Card number: , as my authorized
representative, to sign all necessary or useful legal documents for Hangzhou Weimi Network Technology Co., Ltd. to exercise its rights
under the Fourth Amended and Restated Equity Pledge Agreement entered into by Hangzhou Aimi Network Technology Co., Ltd. and
me on , 2019, and to deal with all the formalities related to the industrial and commercial registration related to the equity pledge.
Signiture:
Date:
Sun Qin
Form of Power of Attorney
I, Chen Lei, hereby irrevocably authorize , with the Identity Card number: , as my authorized
representative, to sign all necessary or useful legal documents for Hangzhou Weimi Network Technology Co., Ltd. to exercise its rights
under the Fourth Amended and Restated Equity Pledge Agreement entered into by Hangzhou Aimi Network Technology Co., Ltd. and
me on , 2019, and to deal with all the formalities related to the industrial and commercial registration related to the equity pledge.
Signiture:
Date:
Chen Lei
Schedule III:
Hangzhou Aimi Network Technology Co., Ltd. Shareholders Resolutions
Date: , 2019
Location: Hangzhou Aimi Network Technology Co., Ltd.
Participating Shareholders: Sun Qin, Chen Lei
After deliberation, the shareholders of the company resolved as follows:
1. Agreed to pledge the company’s 13.43% equity interest held by shareholder Sun Qin and 86.57% equity interest held by
shareholder Chen Lei to Hangzhou Weimi Network Technology Co., Ltd.;
2. Agreed to record the above equity pledges in the company’s shareholder register and complete the relevant industrial and
commercial registration.
These resolutions shall become effective on the date hereof.
Shareholder signature/seal:
Sun Qin
Chen Lei
Exhibit 4.8
Hangzhou Weimi Network Technology Co., Ltd
Sun Qin
Chen Lei
and
Hangzhou Aimi Network Technology Co., Ltd
Fourth Amended and Restated Exclusive Option Agreement
September 23, 2019
Fourth Amended and Restated Exclusive Option Agreement
This Fourth Amended and Restated Exclusive Option Agreement (this “Agreement”) is executed by and among the following parties on
September 23, 2019:
1. Hangzhou Weimi Network Technology Co., Ltd, a wholly foreign-owned enterprise incorporated and existing under the PRC
Laws with its registered address at *** (“Party A”);
2. Sun Qin, ID No. ***, holding 13.43% of the equity interest in Hangzhou Aimi Network Technology Co., Ltd;
3. Chen Lei, ID No. ***, holding 86.57% of the equity interest in Hangzhou Aimi Network Technology Co., Ltd;
(Each of the 2 and 3 above a “Party B”, and collectively the “Party B”); and
4. Hangzhou Aimi Network Technology Co., Ltd, a company incorporated and existing under the PRC Laws with its registered
address at *** (“Party C”).
In this Agreement, each of Party A, Party B and Party C shall be referred to as a “Party” respectively, and they shall be collectively
referred to as the “Parties”.
WHEREAS:
1. Party B currently holds 100% of the equity interest in Party C.
2. Sun Qin, Chen Lei, Zhang Zhen, Linzhi Tencent Technology Co., Ltd, Party A and Party C entered into the Third Amended and
Restated Exclusive Option Agreement on April 25, 2018 (the “Original Agreement”).
1
3. To the extent permitted by the PRC Laws, Party B and Party C intend to grant Party A and/or an individual or individuals
designated by Party A an exclusive option to purchase at any time the equity interest and/or assets of Party C in whole or in part,
and Party A intends to accept such grant.
Now, Therefore, upon mutual discussion and negotiation, the Parties agree as follows:
1. Sales and Purchase of Equity Interest and Assets
1.1 Option Granted
Party B hereby irrevocably grants Party A an irrevocable exclusive right (the “Exclusive Interest Option”) to at any time
purchase or designate an individual or individuals (the “Designee”, who should be (a) direct or indirect shareholders of Party A
and direct or indirect subsidiaries of such shareholders; (b) the PRC citizens among the directors of Party A, direct or indirect
shareholders of Party A and direct or indirect subsidiaries of such shareholders) to purchase from Party B in whole or in part the
equity interest in Party C held by Party B (the “Optioned Interest”) in steps at absolute discretion of Party A, in accordance
with the price prescribed by Section 1.3 of this Agreement, during the term of this Agreement and to the extent permitted by
PRC Laws (including any laws, regulations, rules, notices, explanations or other binding documents promulgated by any central
or local legislative, administrative or judicial authorities before or after the execution of this Agreement, the “PRC Laws”).
Party C hereby agrees to the grant by Party B of the Equity Interest Option to Party A. The term “person” as used herein shall
refer to individuals, corporations, joint ventures, partnerships, enterprises, trusts or non-corporate organizations.
Party C hereby irrevocably grants Party A an irrevocable exclusive right (the “Exclusive Asset Option”, together with the
“Exclusive Interest Option”, the “Exclusive Option”) for Party A or its designee to at any time purchase from Party C in
whole or in part the assets (the “Optioned Assets”) of Party C in steps at absolute discretion of Party A, in accordance with the
price prescribed by Section 1.3 of this Agreement, during the term of this Agreement and to the extent permitted by PRC Laws.
The Exclusive Option is exclusive for Party A. Without prior written consent of Party A, Party B shall not in whole or in part
sell, offer to sell, transfer, gift, pledge or dispose of the Optioned Interest in any other manner, and shall not authorize others to
purchase in whole or in part the Optioned Interest; Party C shall also not in whole or in part sell, offer to sell, transfer, gift,
pledge or dispose of in any other manner the Optioned Assets, and shall not authorize others to purchase in whole or in part the
Optioned Assets.
2
1.2 Purchase Price
Upon exercise of the Exclusive Option by Party A, with respect to the Optioned Interest, the purchase price shall be the
minimum price permitted by the PRC Laws; and with respect to the Optioned Assets, the purchase price shall be the net book
value of the Optioned Assets, but in the event that the minimum price then permitted by the PRC Laws is higher than the net
book value of the Optioned Assets, the purchase price shall be the minimum price then permitted by the PRC Laws.
1.3 Exercise of Option
The exercise of the Exclusive Option by Party A shall be subject to requirements of the PRC Laws. Party A is entitled to
determine the specific timing, method and number of times of the exercise of its Exclusive Option at its absolute discretion.
Each time Party A decides to exercise its Exclusive Interest Option, it shall give a notice to Party B and Party C (the “Equity
Interest Purchase Notice”) of the specific proportions of the Optioned Interest Party A intends to purchase from Party B (the
form of the Equity Interest Purchase Notice as set out in Schedule I to this Agreement).
Each time Party A decides to exercise its Exclusive Asset Option, it shall give a notice to Party B and Party C (“Asset Purchase
Notice”, together with the “Equity Interest Purchase Notice”, the “Purchase Notice”) of the specific quantity of the
Optioned Assets it intends to purchase from Party C (the form of the Asset Purchase Notice as set out in Schedule II to this
Agreement).
1.4 Actions Relating to the Exercise of Option
In the event that Party A exercises its Exclusive Option, in order for the equity/asset transfer to be in compliance with this
Agreement and relevant laws whether in substance or in procedure, Party B and Party C undertake to be obligated to separately
or jointly take the following actions:
(1) Within seven business days after the Purchase Notice is delivered to Party B and Party C, Party B and Party C shall, in
accordance with the provisions of this Agreement and the Purchase Notice, prepare and execute all necessary documents
relating to the transfer of the Optioned Interest/Assets including the equity/asset transfer agreement, and transfer the
Optioned Interest/Assets in whole at one time to Party A and/or its designee;
3
(2) Party B shall cause Party C to convene the shareholders’ meeting in a timely manner and approve the resolution to transfer
equity interest/assets by Party B or Party C to Party A and/or its designee in such meeting;
(3) With respect to the transfer of Optioned Interest, if necessary, Party B and Party C shall execute an equity transfer
agreement (the “Equity Transfer Agreement”) in accordance with the form as set out in Schedule III to this Agreement.
Where the PRC Laws provide otherwise as to the substance and form of the Equity Transfer Agreement, such provision by
the PRC Laws shall prevail. Unless otherwise agreed by the Parties according to the actual situation, the closing for the
Optioned Interest, which shall be the completion of the registration for changes by the administration for industry and
commerce, shall occur no later than the fifteenth business day after the Equity Interest Purchase Notice has been delivered
to Party B and Party C;
(4) On the execution date of this Agreement, Party B and Party C shall execute one or multiple copies of the proxy letter in
accordance with the substance and form as set out in Schedule IV to this Agreement, to authorize any individual appointed
by Party A to execute and deliver the equity/asset transfer agreement and all other documents provided in this Agreement
on behalf of Party B and Party C;
(5) Party B and Party C shall take all necessary actions to conduct and complete relevant approval and registration procedures
without delay and cause the Optioned Interest/Assets to be effectively registered under the name of Party A and/or its
designee without any Security Interest thereon. For the purpose of this section and this Agreement, the “Security Interest”
shall include warranties, mortgages, pledges, third party’s rights or interests, any stock option, acquisition right, right of
first refusal, right to offset, ownership retention or other security arrangements, but shall exclude any security interest
created by the Equity Pledge Agreement (as defined below);
(6) Party B and Party C shall take all necessary actions to free the transfer of the Optioned Interest/Assets from any
interference whether in substance or in procedure. Party B and Party C shall not set any obstructions or restrictive
conditions to the transfer of the Optioned Interest/Assets other than the conditions expressly provided by this Agreement.
4
1.5 The Parties hereby agree that, after the exercise of the Exclusive Option by Party A, all the transfer price obtained by Party
B and/or Party C thereby shall be paid to Party A or its designee without any compensation.
2. Undertakings by the Parties
2.1 Undertakings by Party B and Party C
Party B and Party C hereby irrevocably undertake:
(1) without prior written consent of Party A or its parent company Pinduoduo Inc. (“Party A’s Parent Company”), not to in
any manner supplement, change or amend the articles of association documents of Party C, increase or decrease Party C’s
registered capital, or change Party C’s structure of registered capital in other manners;
(2) to maintain Party C and its subsidiaries’ corporate existence in accordance with good financial and business standards and
practices, and prudently and effectively operate such parties’ business and handle such parties’ affairs;
(3) without prior written consent of Party A or Party A’s Parent Company, not to at any time following the date hereof, sell,
transfer, mortgage or dispose of in any manner the legal or beneficial interest in the assets, business or revenues of Party C,
or allow any other Security Interest thereon;
(4) without prior written consent of Party A or Party A’s Parent Company, not to incur, inherit, guarantee or allow the
existence of any debts, except for (i) debts incurred in the ordinary course of business instead of being incurred by loans;
and (ii) debts already disclosed to Party A and those for which Party A’s written consent has been obtained;
(5) to always operate all of Party C’s business during the ordinary course of business to maintain the asset value of Party C
and refrain from any action/omission that may affect Party C’s operating status and asset value;
(6) without prior written consent of Party A or Party A’s Parent Company, not to enter into any material contract, except for
the contracts in the ordinary course of business (for the purpose of this subsection, a contract with total price exceeding
RMB500,000 shall be deemed as a material contract);
5
(7) without prior written consent of Party A or Party A’s Parent Company, not to provide any person with loan or credit;
(8) to provide Party A with information on Party C’s business operations and financial conditions upon Party A’s request;
(9) that Party C shall purchase and maintain insurance from an insurance carrier acceptable to Party A, with the amount and
type of coverage consistent with the insurance usually purchased by the companies that operate similar businesses and
possess similar properties or assets in the same region;
(10) without prior written consent of Party A or Party A’s Parent Company, not to merge or consolidate with any person, or
acquire or invest in any person;
(11) to immediately notify Party A of the occurrence or potential occurrence of any litigation, arbitration or administrative
proceedings relating to Party C’s assets, business and revenue;
(12) in order to maintain the ownership by Party C of all its assets, to execute all necessary or appropriate documents, take all
necessary or appropriate actions and file all necessary or appropriate complaints or raise necessary and appropriate
defenses against all claims;
(13) without prior written consent of Party A or Party A’s Parent Company, to ensure that Party C shall not in any manner
distribute dividends, distributable interests and/or any asset to its shareholders; in the event that Party B obtains any
aforesaid interest, to notify Party A within three business days and immediately transfer such interest to Party A without
any compensation;
2.2 Undertakings regarding Party B
Party B hereby irrevocably undertakes as follows:
(1) without prior written consent of Party A or Party A’s Parent Company, at any time following the date hereof, not to sell,
transfer, mortgage or dispose of in any manner the legal or beneficial interest in the equity interest in Party C held by it, or
allow any other Security Interest thereon, except for the pledge on the equity interest in Party C held by Party B pursuant to
the fourth amended and restated equity pledge agreement (the “Equity Pledge Agreement”) entered into by the Parties on
the execution date of this Agreement ;
6
(2) without prior written consent of Party A or Party A’s Parent Company, during the shareholders’ meeting of Party C, not to
vote in favor of, support or execute any shareholders’ resolution to approve the sale, transfer, mortgage or disposal of in any
manner, or allow the Security Interest on the legal or beneficial interests in any equity interest or assets of Party C, except
for those made to Party A or its designated person;
(3) without prior written consent of Party A or Party A’s Parent Company, during the shareholders’ meeting of Party C, not to
vote in favor of, support or execute any shareholders’ resolution to approve merger or consolidation of Party C with any
other person, or acquisition of or investment in any other person, or spin-off, change in registered capital or the company
form of Party C;
(4) to cause the shareholders’ meeting to vote in favor of the transfer of the Optioned Interest contemplated by this Agreement;
(5) in order to maintain Party B’s ownership of the equity interest in Party C, to execute all necessary or appropriate
documents, take all necessary or appropriate actions and/or file all necessary or appropriate complaints or raise necessary
and appropriate defenses against all claims;
(6) at the request of Party A, to appoint any designees of Party A as the directors of Party C;
(7) at the request of Party A at any time, to unconditionally and promptly transfer its equity interest in Party C to Party A or
Party A’s designee, and waive its right of first refusal relating to such share transfer by other shareholders of Party C;
(8) to strictly abide by the provisions of this Agreement and other contracts jointly or separately executed by and among Party
A, Party A’s Parent Company, Party B and Party C, perform the obligations hereunder, and refrain from any action/omission
that may affect the effectiveness and enforceability thereof.
7
3. Representations and Warranties by Party B and Party C
Party B and Party C hereby severally represent and warrant to Party A as of the date of this Agreement and each date of transfer,
that:
3.1 They have the authority and power to execute and deliver this Agreement and any share/asset transfer contract to which
they are parties entered into for each transfer of the Optioned Interest/Assets (each a “Transfer Contract”), and to
perform their obligations under this Agreement and any Transfer Contract. This Agreement and the Transfer Contracts to
which they are parties, once executed, constitute or will constitute their legal, valid and binding obligations and shall be
enforceable against them in accordance with the provisions thereof;
3.2 The execution, delivery and performance of this Agreement or relevant equity/asset transfer agreement: (a) shall not
conflict with or violate the provisions of the following documents, or violate such provisions after the receipt of relevant
notice or over time: (i) its business license, articles of association, licenses, approval by the governmental authorities of its
incorporation, agreements relating to its incorporation and other charter documents; (ii) any other laws and regulations by
which it is bound, (iii) any contract, agreement, lease or other documents to which it is party or by which it is bound or its
assets are bound, (b) shall not result in any mortgages or other encumbrances on its assets or entitle any third party to set
any mortgages or encumbrance on its assets except for the pledge placed on the equity interest in Party C pursuant to the
Equity Pledge Agreement; (c) shall not result in the termination or modification of any contract, agreement, lease or other
document provisions to which it is a party or by which it is bound or its assets are bound, or entitle any other third party to
terminate or modify such document’s provisions; (d) shall not result in any suspension, withdrawal, confiscation, damage
or expiration without extension of any approval, license or registration of the authorities as applicable;
3.3 Party C has a good and merchantable ownership of all of its assets, and has not created any Security Interest on such
assets;
3.4 Party C does not have any outstanding debts, except for (i) debts incurred in the ordinary course of business; and (ii) debts
already disclosed to Party A and those for which Party A’s written consent has been obtained. Party B legally and
effectively owns the equity interest in Party C held by it. Except for the pledge on the equity interest in Party C pursuant to
the Equity Pledge Agreement, Party B has not created any Security Interest on the equity interest in Party C;
8
3.5 Party C is in compliance with all the applicable laws and regulations; and
3.6 There are no ongoing, pending or threatened litigations, arbitrations or administrative proceedings relating to the equity
interest in Party C, assets of Party C or Party C.
Party B hereby warrants to Party A that it has made all proper arrangements and executed all necessary documents to ensure that in
the event of its death, incapacity, bankruptcy, divorce or other circumstances that may affect its exercise of shareholder’s right, its
successors, guardians, creditors, spouses and other persons that may thereby acquire the equity interest or relevant rights, shall not
influence or hinder the performance of this Agreement.
The Parties warrant that, once the PRC Laws permit Party A to directly hold the equity interest in Party C and Party C can legally
continue its business, Party A is entitled to exercise all the Exclusive Option immediately.
4. Effective Date and Term of Agreement
This Agreement shall become effective after being executed or sealed by the Parties or executed by their legal representatives.
This Agreement shall be terminated after all the equity interest in Party C held by Party B and/or all the assets of Party C have been
legally transferred to Party A and/or its designee in accordance with this Agreement. Notwithstanding the above provision, Party A
should in any event be entitled to terminate this Agreement by prior written notice to Party B and Party C thirty (30) days in
advance, and Party A shall not be held liable for default in respect of the unilateral termination of this Agreement.
5. Governing Law and Resolution of Disputes
5.1 The effectiveness, construction, performance and the resolution of disputes hereunder shall be governed by the PRC Laws.
5.2 In the event of any dispute with respect to the construction and performance of the provisions of this Agreement, the
Parties shall resolve the dispute through amicable consultations. In the event that the Parties fail to reach an agreement on
the resolution of such dispute within thirty (30) days after the written notice by one Party to another requesting resolution of
the dispute through consultations, either Party may submit the relevant dispute to Hangzhou Arbitration Commission for
arbitration in accordance with its arbitration rules effective then. The arbitration shall be conducted in Hangzhou, and the
language used in arbitration shall be Chinese. The arbitration award shall be final and binding on the Parties.
9
5.3 During the arbitration, the parties shall continue to perform the obligations hereunder other than the disputed issues or
obligations submitted for arbitration. The arbitrators are entitled to render rulings according to the actual situation to grant
Party A the appropriate legal remedies, including limiting the business operation of Party C by Party B, implementing
restrictions or prohibitions on the equity interest in Party C held by Party B or assets of Party C, or issuing an order for the
transfer or disposal of such interest or assets, and requesting the liquidation of Party C by Party B.
5.4 Upon request by a disputing party, the competent court is entitled to grant temporary remedy, such as issuing a judgment
or ruling to withhold or freeze the property or equity interest of the default party. After the arbitral award comes into force,
either party shall be entitled to apply for the competent court to enforce such award. In addition to the Chinese courts, the
Hong Kong courts and Cayman courts shall be deemed as competent for the above purpose.
6. Taxes and Fees
Each Party shall pay any and all transfer and registration tax, expenses and fees incurred thereby or levied thereon in connection
with the preparation and execution of this Agreement and the Transfer Contracts, as well as the consummation of the transactions
contemplated under this Agreement and the Transfer Contracts.
7. Notices
Notices under this Agreement shall be delivered in person, by facsimile or by registered post to the following addresses unless
changed by written notifications. The delivery date of the notice shall be the receiving date on the receipt if delivered by
registered post, or the date of delivering to the recipient if delivered in person or by facsimile. If delivered by facsimile, the
original notice shall be immediately sent to the following addresses in person or by registered post after such delivery.
10
Party A:
Hangzhou Weimi Network Technology Co., Ltd.
Address: ***
Tel: ***
Party B:
Sun Qin
Address: ***
Tel: ***
Chen Lei
Address: ***
Tel: ***
Party C:
Hangzhou Aimi Network Technology Co., Ltd.
Address: ***
Tel: ***
11
8. Confidentiality
8.1 Prior to the execution and during the term of this Agreement, one Party (the “Disclosing Party”) has disclosed or may
from time to time disclose to other Party (the “Receiving Party”) confidential information (including but not limited to
business information, customer information, financial information and contracts). The Receiving Party shall maintain in
confidence such confidential information and shall not use any confidential information other than for the purpose
expressly provided by this Agreement. The aforesaid provisions do not apply to the following information: (a) any
information that has already been obtained by the Receiving Party as proved by written records produced prior to the date
of disclosure by the Disclosing Party; (b) any information that becomes public at present or in future not due to the breach
of this Agreement by the Receiving Party; (c) any information that is received from a third party which is not bound by an
obligation of confidentiality for such information; and (d) any information that is required to be disclosed by relevant laws,
regulations or authorities, or that is disclosed to its legal counsels or financial advisors in the ordinary course of business.
8.2 The aforesaid confidentiality obligations of the Parties are continuous, and shall not be terminated with the termination of
this Agreement.
9. Further Warranties
The Parties agree to promptly execute documents that are reasonably required for or are conducive to the implementation of the
provisions and purposes of this Agreement and take further actions that are reasonably required for or are conducive to the
implementation of the provisions and purposes of this Agreement.
10. Force Majeure
10.1 Where the performance of this Agreement is postponed or prevented by a “Force Majeure Event”, the party affected by
force majeure shall not assume any liability hereunder only in respect of such postponed or prevented performance. The
“Force Majeure Event” means any event out of the reasonable control of one party and that is unavoidable for the
affected party with reasonable attention, including but not limited to acts by government, force of nature, fire, explosion,
geographical changes, storm, flood, earthquake, tide, lightning or war. However, the lack of credit, capital or finance shall
not be deemed as event out of the reasonable control of one party. Any Party affected by the “Force Majeure Event” which
seeks the release of performance obligations of this Agreement or any provision hereunder shall notify other Parties of the
matter of such release and the necessary steps to complete such performance.
12
10.2 The party affected by force majeure shall not assume any liability hereunder, provided that the affected Party has made
reasonable and practical efforts to perform this Agreement, and shall be released from such liability to the extent of the
postponed or prevented performance. Upon the rectification and remedy of the reasons for such release, the Parties agree
to make their best efforts to resume the performance of this Agreement.
11. Miscellaneous
11.1 Amendment, Change and Supplement
The parties shall make amendments and supplements to this Agreement in writing. The amendment agreement and supplementary
contract relating to this Agreement that are properly signed by the Parties are part of this Agreement, and shall have the same
legal effect as this Agreement.
11.2 Entire Agreement
Except for the amendments, supplements or changes in writing after the execution of this Agreement, this Agreement shall
constitute the entire agreement reached by and among the Parties hereto with respect to the subject matter hereof, and shall
supersede all prior oral or written consultations, representations and contracts reached with respect to the subject matter of this
Agreement, including but not limited to the Original Agreement.
11.3 Headings
The headings of this Agreement are for convenience only, and shall not be used to interpret, explain or otherwise affect the
meanings of the provisions of this Agreement.
11.4 Language
This Agreement is written in Chinese in multiple copies.
11.5 Severability
In the event that one or several of the provisions of this Agreement are found to be invalid, illegal or unenforceable in any aspect
in accordance with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement
shall not be affected or compromised in any respect. The Parties shall strive in good faith to replace such invalid, illegal or
unenforceable provisions with effective provisions through consultations, and the economic effect of such effective provisions
shall be as close as possible to the economic effect of those invalid, illegal or unenforceable provisions.
13
11.6 Successors
This Agreement shall be binding on the respective successors of the Parties and the permitted assignees of such Parties.
11.7 Survival
Any obligation that occurs or that is due as a result of this Agreement upon the expiration or advance termination of this
Agreement shall survive the expiration or advance termination thereof.
The provisions of Section 6, Section 8 and Section 11.8 of this Agreement shall remain effective after the termination of this
Agreement.
11.8 Waivers
Any Party may waive the terms and conditions of this Agreement, provided that such a waiver must be provided in writing and
shall require the signatures of the Parties. No waiver by any Party in certain circumstances with respect to a breach by other
Parties shall operate as a waiver by such a Party with respect to any similar breach in other circumstances.
IN WITNESS WHEREOF, the Parties have executed this Exclusive Option Agreement as of the date first above written.
14
(This page is intentionally left as the signature page of the Fourth Amended and Restated Exclusive Option Agreement)
IN WITNESS WHEREOF, this Fourth Amended and Restated Exclusive Option Agreement has been executed by the Parties as of the
date and at the place first above written.
Hangzhou Weimi Network Technology Co., Ltd.
(Seal)
Signature: /s/ Sun Qin
Name:
Sun Qin
Title:
Legal Representative
Sun Qin
Signature: /s/ Sun Qin
Hangzhou Aimi Network Technology Co., Ltd.
(Seal)
Signature: /s/ Sun Qin
Name:
Sun Qin
Title:
Legal Representative
(This page is intentionally left as the signature page of the Fourth Amended and Restated Exclusive Option Agreement)
IN WITNESS WHEREOF, this Fourth Amended and Restated Exclusive Option Agreement has been executed by the Parties as of the
date and at the place first above written.
Chen Lei
Signature: /s/ Chen Lei
Schedule I
To: Sun Qin and Chen Lei
Equity Interest Purchase Notice
Sun Qin and Chen Lei entered into a Fourth Amended and Restated Exclusive Option Agreement with us on , 2019. The terms in this
notice shall have the meanings given to them as in such agreement.
We have decided to exercise the Exclusive Interest Option provided in the Fourth Amended and Restated Exclusive Option Agreement
whereby we or [ ] [name of the company/individual] as designated by us will acquire the 13.43% and 86.57% of the equity interest in
Hangzhou Aimi Network Technology Co., Ltd. respectively held by Sun Qin and Chen Lei. Sun Qin and Chen Lei shall complete the
closing for the Optioned Interest within fifteen business days in accordance with the Fourth Amended and Restated Exclusive Option
Agreement upon receipt of this notice.
Hangzhou Weimi Network Technology Co., Ltd.(Seal)
Date: [ ] [ ], [ ]
Schedule II
To: Hangzhou Aimi Network Technology Co., Ltd
Asset Purchase Notice
Sun Qin and Chen Lei entered into the Fourth Amended and Restated Exclusive Option Agreement with us on , 2019. The terms in this
notice shall have the meanings given to them as in such agreement.
We have decided to exercise the Exclusive Asset Option provided in the Fourth Amended and Restated Exclusive Option Agreement
whereby we or [ ] [name of the company/individual] as designated by us will purchase the assets of you as outlined in the separate list
attached (the “Contemplated Assets”). Please transfer all the Contemplated Assets to us or [ ] [name of the company/individual
designated] in accordance with the Fourth Amended and Restated Exclusive Option Agreement upon receipt of this notice.
Hangzhou Weimi Network Technology Co., Ltd.(Seal)
Date: [ ] [ ], [ ]
Schedule III
This Equity Transfer Agreement (this “Agreement”) is executed on [ ] [ ], [ ] among:
Equity Transfer Agreement
Transferor: Sun Qin
ID No.: ***
Transferor: Chen Lei
ID No.: ***
Transferee: Hangzhou Weimi Network Technology Co., Ltd,
Registered Address: ***
The parties agree as follows:
1. Sun Qin and Chen Lei agree to sell at the lowest price permitted by the PRC laws and the Transferee agrees to purchase under the
same condition 13.43% and 86.57% of the equity interest in Hangzhou Aimi Network Technology Co., Ltd as respectively held by Sun
Qin and Chen Lei (“Optioned Interest”).
2. Upon the completion of the above transfer of the Optioned Interest, the Transferors shall not be entitled to any rights with respect to
such Optioned Interest, and the Transferee shall be entitled to the full rights with respect to such Optioned Interest previously enjoyed by
the Transferors.
3. The effectiveness, construction, performance and the resolution of disputes hereunder shall be governed by PRC Laws. The matters
not covered in this Agreement and any dispute arising from the execution and performance of this Agreement shall be resolved pursuant
to the Fourth Amended and Restated Exclusive Option Agreement or through amicable consultations. In the event that the Parties fail to
reach an agreement on the dispute within thirty days (30) after the dispute arises, either Party may submit the relevant dispute to
Hangzhou Arbitration Commission for arbitration in Hangzhou with a tribunal of three arbitrators, in accordance with the effective
arbitration rules then. The claimant and the respondent shall each designate an arbitrator, and a third arbitrator shall be designated by
Hangzhou Arbitration Commission. If the number of claimants or respondents exceeds two (natural persons or legal persons), these
persons shall agree in writing on the designation of one arbitrator. The award of the arbitration shall be final and binding upon the
disputing parties. During the arbitration, the parties shall continue to perform the obligations hereunder except for the disputed issues or
obligations submitted for arbitration. The arbitrators are entitled to render rulings according to the actual situation to grant transferee the
appropriate legal remedies, including limiting the business operation of Hangzhou Aimi Network Technology Co., Ltd, implementing
restrictions on the equity interest in or assets of Hangzhou Aimi Network Technology Co., Ltd held by transferors, banning on the
transfer or disposal of such interest or assets, and requesting the liquidation of Hangzhou Aimi Network Technology Co., Ltd. by the
Transferors.
4. Upon the request of the Transferee, the competent court is entitled to grant temporary remedy, such as issuing a judgment or ruling to
withhold or freeze the property or equity interest of the default party. After the arbitral award comes into force, either party shall be
entitled to apply for the competent court to enforce such award. In addition to the Chinese courts, the Hong Kong courts and Cayman
courts shall be deemed as competent for the above purpose.
5. This Agreement shall take effect on the date of execution by the parties.
[Signature Pages to Follow]
(This page is intentionally left as the signature page of the Equity Transfer Agreement)
Transferor:
Sun Qin
Signature:
Transferee:
Hangzhou Weimi Network Technology Co., Ltd. (Seal)
Legal Representative: Sun Qin
(This page is intentionally left as the signature page of the Equity Transfer Agreement)
Chen Lei
Signature:
Schedule IV
Irrevocable Proxy Letter (I)
Pursuant to the Fourth Amended and Restated Exclusive Option Agreement executed among Hangzhou Weimi Network Technology Co.,
Ltd, Hangzhou Aimi Network Technology Co., Ltd and me dated , 2019, I hereby issue this proxy letter.
I hereby irrevocably delegate and authorize (ID No. ) (the “Agent”) as my agent, with full authority and power to
(1) prepare and execute the Equity Transfer Agreement (as defined in Fourth Amended and Restated Exclusive Option Agreement);
(2) prepare and execute all necessary documents relating to the transfer of the Optioned Interest (as defined in Fourth Amended and
Restated Exclusive Option Agreement); (3) fulfill all approval and registration procedures relating to the transfer of the Optioned
Interest.
I hereby agree and acknowledge that the Agent has full authority and power to exercise the rights in a manner it considers appropriate
within the scope of the foregoing authorization. I undertake to accept the obligations or responsibilities arising out of the exercise of such
rights by the Agent.
This proxy letter shall become effective upon my execution, and shall remain effective during the effective term of the Fourth Amended
and Restated Exclusive Option Agreement.
This letter is hereby issued.
Sun Qin
Signature:
Date: , 2019
Irrevocable Proxy Letter (II)
Pursuant to the Fourth Amended and Restated Exclusive Option Agreement executed among Hangzhou Weimi Network Technology Co.,
Ltd, Hangzhou Aimi Network Technology Co., Ltd and me dated , 2019, I hereby issue this proxy letter.
I hereby irrevocably delegate and authorize (ID No. ) (the “Agent”) as my agent, with full authority and power to
(1) prepare and execute the Equity Transfer Agreement (as defined in Fourth Amended and Restated Exclusive Option Agreement);
(2) prepare and execute all necessary documents relating to the transfer of the Optioned Interest (as defined in Fourth Amended and
Restated Exclusive Option Agreement); (3) fulfill all approval and registration procedures relating to the transfer of the Optioned
Interest.
I hereby agree and acknowledge that the Agent has full authority and power to exercise the rights in a manner it considers appropriate
within the scope of the foregoing authorization. I undertake to accept the obligations or responsibilities arising out of the exercise of such
rights by the Agent.
This proxy letter shall become effective upon my execution, and shall remain effective during the effective term of the Fourth Amended
and Restated Exclusive Option Agreement.
This letter is hereby issued.
Chen Lei
Signature:
Date: , 2019
Exhibit 8.1
List of Principal Subsidiaries and Consolidated Variable Interest Entity
Subsidiary
Place of Incorporation
HongKong Walnut Street Limited
Hong Kong
Hangzhou Weimi Network Technology Co., Ltd.
Walnut Street (Shanghai) Information Technology Co., Ltd.
Shenzhen Qianhai Xinzhijiang Information Technology Co., Ltd.
Consolidated Variable Interest Entity
Hangzhou Aimi Network Technology Co., Ltd.
Subsidiary of Consolidated Variable Interest Entity
Shanghai Xunmeng Information Technology Co., Ltd.
PRC
PRC
PRC
PRC
PRC
Place of Incorporation
Place of Incorporation
Exhibit 12.1
Certification by the Principal Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Zheng Huang, certify that:
1. I have reviewed this annual report on Form 20-F of Pinduoduo Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this
report, fairly present in all material respects the financial condition, results of operations and cash flows of the
company as of, and for, the periods presented in this report;
4. The company’s other certifying officer and I are responsible for establishing and maintaining disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over
financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information relating to the
company, including its consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over
financial reporting to be designed under our supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented
in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the
end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the company’s internal control over financial reporting
that occurred during the period covered by the annual report that has materially affected, or is reasonably
likely to materially affect, the company’s internal control over financial reporting; and
5. The company’s other certifying officer and I have disclosed, based on our most recent evaluation of
internal control over financial reporting, to the company’s auditors and the audit committee of the company’s
board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect the company’s ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a
significant role in the company’s internal control over financial reporting.
Date: April 24, 2020
/s/ Zheng Huang
By:
Name: Zheng Huang
Title: Chief Executive Officer
Exhibit 12.2
Certification by the Principal Financial Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Zheng Huang, certify that:
1. I have reviewed this annual report on Form 20-F of Pinduoduo Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this
report, fairly present in all material respects the financial condition, results of operations and cash flows of the
company as of, and for, the periods presented in this report;
4. The company’s other certifying officer and I are responsible for establishing and maintaining disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over
financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information relating to the
company, including its consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over
financial reporting to be designed under our supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented
in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the
end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the company’s internal control over financial reporting
that occurred during the period covered by the annual report that has materially affected, or is reasonably
likely to materially affect, the company’s internal control over financial reporting; and
5. The company’s other certifying officer and I have disclosed, based on our most recent evaluation of
internal control over financial reporting, to the company’s auditors and the audit committee of the company’s
board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect the company’s ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a
significant role in the company’s internal control over financial reporting.
Date: April 24, 2020
/s/ Zheng Huang
By:
Name: Zheng Huang
Title: Chief Executive Officer
Certification by the Principal Executive Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Exhibit 13.1
In connection with the Annual Report of Pinduoduo Inc. (the “Company”) on Form 20-F for the fiscal year
ended December 31, 2019 as filed with the Securities and Exchange Commission on the date hereof (the
“Report”), I, Zheng Huang, Chief Executive Officer of the Company, hereby certify, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange
Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition
and results of operations of the Company.
Date: April 24, 2020
/s/ Zheng Huang
By:
Name: Zheng Huang
Title: Chief Executive Officer
Certification by the Principal Financial Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Exhibit 13.2
In connection with the Annual Report of Pinduoduo Inc. (the “Company”) on Form 20-F for the fiscal year
ended December 31, 2019 as filed with the Securities and Exchange Commission on the date hereof (the
“Report”), I, Zheng Huang, Chief Executive Officer of the Company, hereby certify, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange
Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition
and results of operations of the Company.
Date: April 24, 2020
/s/ Zheng Huang
By:
Name: Zheng Huang
Title: Chief Executive Officer
Exhibit 15.1
April 24, 2020
Pinduoduo Inc.
28/F, No. 533 Loushanguan Road,
Changning District, Shanghai 200051
People's Republic of China
Dear Sirs,
Re: Consent of People’s Republic of China Counsel
We consent to the reference to our firm under the headings “Item 3. KEY INFORMATION” and “Item 4. INFORMATION ON THE
COMPANY” in the annual report of Pinduoduo Inc. on Form 20-F for the year ended December 31, 2019 (the “Annual Report”),
which is filed with the U.S. Securities and Exchange Commission on the date hereof.
In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, or under the Securities Exchange Act of 1934, in each case, as amended, or the regulations promulgated
thereunder.
Very truly yours,
/s/ King & Wood Mallesons
King & Wood Mallesons
Consent of Independent Registered Public Accounting Firm
Exhibit 15.2
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-233897) pertaining to the 2015 Global
Share Plan and the 2018 Share Incentive Plan of Pinduoduo Inc. of our reports dated April 24, 2020, with respect to the consolidated
financial statements of Pinduoduo Inc., and the effectiveness of internal control over financial reporting of Pinduoduo Inc., included in
this Annual Report (Form 20-F) for the year ended December 31, 2019.
/s/ Ernst & Young Hua Ming LLP
Beijing, the People’s Republic of China
April 24, 2020