Exhibit 4.(a).28
SHARE PURCHASE AGREEMENT
among
PRIME LEADER HOLDINGS LIMITED
as "Purchaser"
and
TRIDAL PACIFIC LIMITED
and
SKYNET GLOBAL LIMITED
as the "Sellers"
and
HONG DAI
and
XXXXX XXXXXXXX XXXX
as the "Beneficiaries"
and
EQUITY PACIFIC LIMITED
as the "Company"
DATED AS OF MARCH 17, 2006
THIS SHARE PURCHASE AGREEMENT (this "AGREEMENT"), dated as of March 17,
2006, is made by and among:
(A) PRIME LEADER HOLDINGS LIMITED (the "PURCHASER"), a company duly
incorporated under the laws of the British Virgin Islands and a wholly
owned subsidiary of Xxxxx.xxx Inc.;
(B) TRIDAL PACIFIC LIMITED ("TRIDAL"), a company duly incorporated under
the laws of the British Virgin Islands and owned 100% by Xx. Xxx;
(C) SKYNET GLOBAL LIMITED ("SKYNET"), a company duly incorporated under
the laws of the British Virgin Islands and owned 100% by Xx. Xxxx and
key employees as set out in SCHEDULE C;
(collectively, the "SELLERS" and each a "SELLER");
(D) HONG DAI ("XX. XXX"), a citizen of the People's Republic of China (the
"PRC", for the purposes of this Agreement, excluding the Hong Kong
Special Administrative Region, the Macao Special Administrative Region
and Taiwan) residing at Xxxx 000, #000, XxxXxxx Xxxx, Xxxxxxx
Xxxxxxxx, 000000, Beijing, PRC;
(E) XXXXX XXXXXXXX XXXX ("XX. XXXX"), a citizen of the United States of
America residing at Xxxx 0000, 0/X, Xxxxx 0, Xxx Xxxx Xxxx Xxxxx Xxx
Xxxx Garden, Xxx Xxxx Gong New District, Xxx Xxxx Gong, Chaoyang
District, 100028, Beijing, PRC;
(collectively, the "BENEFICIARIES" and each a "BENEFICIARY");
(F) EQUITY PACIFIC LIMITED, a company duly incorporated under the laws of
the British Virgin Islands (the "COMPANY"); and,
(G) BEIJING 17 GAME NETWORK TECHNOLOGY LTD ("17GAME"), a limited liability
company incorporated in the PRC with its legal address at 00xx Xxxxx,
Xxxxx Xxxxx, Xx. X.0, Xxxxxxx Street, Beisihuan East Road, Beijing,
PRC
Each of the foregoing parties is referred to herein as a "PARTY" and
collectively as the "PARTIES."
WITNESSETH
WHEREAS, prior to Closing (defined herein) Tridal is the legal and
beneficial owner of 15,477 ordinary shares of par value US$1.00 in the Company
which it desires to sell to the Purchaser and the Purchaser desires to acquire
from Tridal.
WHEREAS, prior to Closing (defined herein) Skynet is the legal and
beneficial owner of 9,092 ordinary shares of par value US$1.00 in the Company
which it desires to sell to the Purchaser and the Purchaser desires to acquire
from Skynet.
WHEREAS, there are 47,248 ordinary shares of par value US$1.00 issued and
outstanding in the Company.
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WHEREAS, 17game is a wholly owned subsidiary of the Company and operates
Yulgang, a multiplayer online role playing game in the PRC ("YULGANG");
WHEREAS, subject to the Closing, the Purchaser has agreed to waive its
right to acquire Tridal Held Shares (defined herein) and Skynet Held Shares
(defined herein) under the Option Agreement.
WHEREAS, the Sellers desire to transfer and sell to the Purchaser, and the
Purchaser desires to receive and purchase from the Sellers 24,569 ordinary
shares of par value US$1.00 for a Total Consideration (defined herein) of
US$18,000,000.
NOW, THEREFORE, in consideration of the mutual representations, warranties
and covenants contained herein, the Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As used herein the following terms shall have the following meanings:
"Affiliate" means any Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the means the power, direct or indirect, to direct or cause the direction
of the management and policies of such entity whether by contract ot otherwise.
In case of a Person being an individual, "Affiliates" means any of his or her
immediate family members; and the term "immediate family members" means spouse,
children, father or mother, grandfather or grandmother, brother or sister.
"Agreement" means this Share Purchase Agreement, the exhibits and schedules
hereto and the certificates or other documents given under, as the same may be
amended, supplemented or modified from time to time.
"Assets" means all of the assets of the Company including but not limited
to the Intellectual Property.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Hong Kong are authorized or permitted by law to close.
"Xxxxx.xxx" means Xxxxx.xxx Inc., a company duly incorporated under the
laws of Cayman Inlands and whose shares are listed on the Growth Enterprise
Market in Hong Kong.
"Xxxxx.xxx Shares" means the ordinary shares, par value HK$0.10 per share,
of Xxxxx.xxx.
"Closing" shall have the meaning given to such term in Section 2.5.
"Closing Date" shall have the meaning given to such term in Section 2.5.
"Effective Date" means the date of this Agreement.
"Equity Interest" means those shares representing 52% of the total issued
and outstanding shares in the Company on a fully diluted basis which are
currently owned by the Sellers and which shall be purchased by the Purchaser in
accordance with the terms of this Agreement otherwise defined as the Tridal Held
Shares and the Skynet Held Shares.
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"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
Hong Kong or the PRC or any applicable foreign country or any domestic or
foreign state, county, city or other political subdivision.
"HK$" or "Hong Kong Dollars" means the lawful currency of Hong Kong.
"Intellectual Property" means: (a) all copyrightable works, copyrights and
design rights including all applications, registrations, and renewals in
connection therewith; (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith; (c) all inventions, discoveries and patents (whether patentable or
unpatentable and whether or not reduced to practice); (d) all trade secrets and
confidential information (including ideas, research and development, know-how,
formulas, manufacturing and production processes and techniques, technical data,
designs, drawings, specifications, customer and supplier lists, pricing and cost
information, and business and marketing plans and proposals); (e) all computer
software (including data and related documentation) or source or object code,
including all improvements, revisions, amendments, modifications or
alternations; and (f) all other proprietary, intellectual and industrial rights
in whatever form or medium, including moral rights.
"Liability" as used either singularly or in the plural shall mean any
liability, debt or obligation of the Company, or its any Subsidiary.
"Material Adverse Effect" means a material adverse effect upon the
business, Assets or operations of the Company.
"Option Agreement" means the agreement by and among the Purchaser, the
Sellers, the Beneficiaries, the Company and 17game dated February 27, 2004.
"Person" means an individual, company, enterprise legal person,
non-enterprise legal person, unincorporated association, joint venture,
governmental entity or other entity of whatever nature.
"Restricted Shares" shall have the meaning given to such term in Section
3.1.
"Skynet Consideration" shall have the meaning given to such term in Section
2.3.
"Skynet Held Shares" means the 9,092 ordinary shares, par value US$1.00 per
share of the Company held by Skynet, representing a 19.24% equity interest in
the Company on a fully diluted basis and all of the equity interests in the
Company held (beneficiary and legally) by Skynet.
"Skynet Restricted Shares" shall have the meaning given to such term in
Section 2.4 (b)(ii).
"Subsidiary" and "Subsidaries" means, with respect to a Party, such Person
or Persons of which such Party, directly or through another Person, owns more
than 50% of the outstanding voting securities, or of which such Party, directly
or through another Person, has the power to control. A list of Subsidiary of the
Company is set forth in SCHEDULE A.
"Total Consideration" shall have the meaning given to such term in Section
2.1.
"Tridal Consideration" shall have the meaning given to such term in Section
2.2.
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"Tridal Held Shares" means the 15,477 ordinary shares, par value US$1.00
per share of the Company on a fully diluted basis held by Tridal, representing a
32.76% equity interest in the Company and all of the equity interests in the
Company held (beneficiary and legally) by Tridal.
"Tridal Restricted Shares" shall have the meaning given to such term in
Section 2.4 (a)(ii).
"US$" or "United States Dollars" means the lawful currency of United States
of America.
"Warrantor" and "Warrantors" means the Sellers, Xx. Xxxx, Xx. Xxx and the
Company
ARTICLE 2
SHARE PURCHASE
2.1 Sale and Purchase of Equity Interest. Subject to the terms and
conditions hereof, and in reliance upon the representations, warranties and
covenants contained in this Agreement, the Purchaser agrees to purchase the
Equity Interest from the Sellers for an aggregated total consideration of
US$18,000,000 (the "TOTAL CONSIDERATION") and therefore become the legal and
beneficial owner of 100% of the Company. The Total Consideration will be
allocated between the Sellers on a pro-rata basis relative to each Sellers'
percentage ownership in the Equity Interest prior to Closing as set out in more
detail in Section 2.4.
Each of the Sellers hereby waives in favor of the Purchaser any pre-emptive
or other rights that each Seller has now or might otherwise have in respect of
any of the Equity Interest held by the Sellers prior to Closing. Each Seller
agrees that the Equity Interest will be transferred free from any mortgage,
charge, lien, pledge or other encumbrance and with all rights attached or
accruing to them on and from the Closing Date.
2.2 Purchase of Shares from Tridal. Subject to the terms and conditions set
forth herein, Tridal will sell to the Purchaser, and the Purchaser will purchase
from Tridal, the Tridal Held Shares for a total purchase price of
US$11,338,200(the "TRIDAL CONSIDERATION").
2.3 Purchase of Shares from Skynet. Subject to the terms and conditions set
forth herein, Skynet will sell to the Purchaser, and the Purchaser will purchase
from Skynet, the Skynet Held Shares for a total purchase price of US$6,661,800
(the "SKYNET CONSIDERATION").
2.4 Form of Consideration. The Total Consideration will be paid in the form
of cash and restricted shares of Xxxxx.xxx and apportioned between the Sellers
on a pro-rata basis relative to each Sellers' percentage ownership of the Equity
interest prior to the Closing Date as follows:
(a) the Tridal Consideration shall be paid as follows: (i)
US$2,834,550 (or 25% of the Tridal Consideration) in cash to Tridal; and
(ii) US$8,503,650 (or 75% of the Tridal Consideration) in Xxxxx.xxx
restricted shares as further described in Section 3 ("TRIDAL RESTRICTED
SHARES");
(b) the Skynet Consideration shall be paid respectively according to
the table below and by way of: (i) US$1,998,540 (or 30% of the Skynet
Consideration) in cash; and (ii) US$4,663,260 (or 70% of the Skynet
Consideration) in Xxxxx.xxx restricted shares as further described in
Section 3 ("SKYNET RESTRICTED SHARES");
Skynet Beneficial Holder Percentage Cash Restricted Shares
------------------------ ---------- ------------ -----------------
Xx. Xxxx 74.5 US$1,488,912 US$3,474,129
Datahouse Group Limited 25.5 US$ 509,628 US$1,189,131
Total 100% US$1,998,540 US$4,663,260
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2.5 The Closing. The closing of the sale and purchase of the Tridal Held
Shares and the Skynet Held Shares (the "CLOSING") shall take place on March 17,
2006 at the offices of Xxxxx.xxx or at such other place and time or on such
other date as is mutually agreed to in writing by the Parties (the "CLOSING
DATE"). Upon the satisfaction or waiver by the appropriate Party or Parties of
all of the conditions precedent set forth herein, the Sellers shall deliver at
the Closing to the Purchaser or a third party designated by the Parties share
certificates properly issued by the Company and registered in the name of the
Purchaser representing the number of Tridal Held Shares and the Skynet Held
Shares respectively in the books and records of the Company.
ARTICLE 3
RESTRICTED SHARES
3.1 Grant of Restricted Shares. On March 27, 2006 or such other date no
later than April 7, 2006, the Purchaser shall deliver to the Sellers share
certificates in respect of the Xxxxx.xxx restricted shares to be issued as part
of the Total Consideration to be paid in accordance with Sections 2.4(a)(ii) and
2.4(b)(ii) (the "RESTRICTED SHARES"). The number of Restricted Shares provided
as part of the Total Consideration shall be calculated as follows:
(a) in respect of the Tridal Restricted Shares, US$8,503,650 divided by the
Conversion Price (converted to HK$ in accordance with Section 3.2);
(b) in respect of the Skynet Restricted Shares, US$4,663,260 divided by the
Conversion Price (converted to HK$ in accordance with Section 3.2).
Where the "Conversion Price" is the average per share closing price of
Xxxxx.xxx Shares quoted on the Growth Enterprise Market in Hong Kong for the
thirty (30) trading days prior to February 16, 2006.
3.2 Conversion Foreign Exchange Rate. For the purposes of Section 3.1, the
conversion from United States Dollars to Hong Kong Dollars shall be at the rate
of 1:7.8 of United States Dollars to Hong Kong Dollars.
3.3 Terms of Restricted Shares. The Restricted Shares will vest over a
period of two years with 25% vesting on the first six-month anniversary of the
Closing Date and 12.5% vesting on each subsequent three-month anniversary of the
Closing Date thereafter (the "RESTRICTED PERIOD"). The Restricted Share can only
be sold or transferred after they have vested but they shall not in any event be
subject to forfeiture by whatsoever means.
3.4 Voting Rights and Dividends. The holder of the Restricted Shares will
have all voting rights and rights to dividends paid in cash with respect to
vested Restricted Shares. The Company will retain any dividends paid in stock
with respect to unvested Restricted Shares, and shall immediately distribute
such stock dividends to the respective holders of the Restricted Shares as soon
as such Restricted Shares have vested.
3.5 Holding of Restricted Shares. Xxxxx.xxx will upon Closing, transfer
physical custody of the Restricted Shares to Skynet and Datahouse Group Limited
entitled thereto on the Closing Date and
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do all other things necessary to ensure that Skynet and Datahouse Group Limited
become the legal and beneficiary owners of the Restricted Shares. The share
certificate will bear a restrictive legend satisfactory to Xxxxx.xxx.
3.6 Transfer of Restricted Shares. The Restricted Shares are not
transferable, except through the laws of descent and distribution, before
vesting. All transfer of Restricted Shares shall be done through Xxxxx.xxx and
must be made in accordance with applicable laws. After vesting, the Purchaser
shall, and shall procure Xxxxx.xxx to offer its best assistance to effect and
complete any transfer of the Restricted Shares within thirty (30) days after
either Tridal or Skynet submits a written request of the proposed transfer. For
the avoidance of doubt, the cost for effecting and completing any transfer of
the Restricted Shares shall be equally borne by the Purchaser and the requesting
party being either Tridal or Skynet.
3.7 Repurchase Undertaking. Subject to Section 7.2, the Purchaser agrees to
provide a share repurchase protection for the then unsold Restricted Shares
within thirty (30) days upon the expiration of two (2) years after the Closing
Date (the "WINDOW PERIOD") at the repurchase price provided that Xx. Xxx'x
employment contract with the Company or any of its Subsidiaries (the "XX. XXX'X
EMPLOYMENT CONTRACT") and Xx. Xxxx'x employment contract with the Company or any
of its Subsidiaries (the "XX. XXXX'X EMPLOYMENT CONTRACT") have not been earlier
terminated prior to the expiration of the 2-year term except for (a) termination
by Company or its Subsidiary, or (b) termination by mutual agreement between the
Company and Xx. Xxx or Xx. Xxxx and the Sellers have demonstrated to the
Purchaser that they have used their best efforts to reasonably attempt to sell
the Restricted Shares as they vest during the two (2) year period after the
Closing Date. The repurchase price shall be equal to 97% of the forty-five (45)
days average trading price of Xxxxx.xxx Shares prior to the date the Sellers
jointly deliver or each of the Sellers separately delivers a written notice to
the Purchaser requesting for the share repurchase within the Window Period.
ARTICLE 4
CONDITIONS TO CLOSING
4.1 Conditions to Closing by Purchaser.
The obligations of the Purchaser under this Agreement are subject to the
satisfaction of the following conditions precedent by the Sellers and the
Beneficiaries (jointly and severally) on or before the Closing, which may be
waived by the Purchaser in whole or in part at its sole discretion:
(a) Representations and Warranties. Each of the representations and
warranties made by the Warrantors in this Agreement shall be true and correct in
all material respects.
(b) Performance. Each of the Warrantors shall have performed and complied
with, each agreement, covenant and obligation required by this Agreement to be
so performed or complied with by either Warrantor at or before the Closing.
(c) Consents and Approvals. All consents, approvals and actions of, filings
with and notices to any third party, Governmental or Regulatory Authority
necessary to permit either Seller and the Company to perform their respective
obligations under this Agreement and to consummate the transactions contemplated
hereby and thereby shall have been duly obtained, made or given, and shall be in
full force and effect as at the Closing Date. No statute, rule or regulation,
order, decree or injunction will have been enacted, entered,
6
promulgated or enforced by any court or Governmental or Regulatory Authority of
competent jurisdiction which enjoins or prohibits the consummation of the
transactions contemplated by this Agreement.
(d) Key Employees. The Company or its any Subsidiary shall have entered
into employment agreements with a minimum term of two (2) years with each of Xx.
Xxx, Xx. Xxxx, Xx. Xxxx Xiao Ri, Xx. Xxx Wei and Ms. Xx Xxxx Hui as set forth in
the form of SCHEDULE F hereof.
(e) Legal Action. As of the Closing Date, there will not be any actual
written threats or any action, proceeding or other application pending before
any court or Governmental or Regulatory Authority in relation to the Company or
the Equity Interest which will have Material Adverse Effect on the transactions
contemplated hereby.
(f) No Material Adverse Change. From February 28, 2006 to the Closing Date
and as at the Closing Date, there shall not have been occurred any Material
Adverse Effect on the Equity Interest, any of the Assets or any operation or
financial performance of the Company.
(g) Share Transfers/Certificates. The Purchaser shall have received duly
executed transfers of the Equity Interest in its favor, in a registerable form
and in accordance with the Company's Constitution representing the Equity
Interest, together with share certificates for such Equity Interest and all
other consents, approvals and/or documents needed by the Purchaser to register
the transfers and obtain ownership of the Equity Interest as the Purchaser may
require.
(h) Board Approval of the Company. The Board of the Company (the "BOARD")
shall have: (i) approved the execution of this Agreement and the transactions
contemplated herein; and (ii) approved the transfer of the Equity Interest.
(i) Sellers' Approval. On or before the Closing Date, each Seller's board
shall have approved the execution of this Agreement and the transactions
contemplated herein by each Seller and approved the transfer of the relevant
Equity Interest.
(j) Board Appointee/Subsidiary Board Appointee/Legal Representative.
Effective as of the Closing Date, the designees of the Purchaser shall have been
elected: (i) to the Board; and (ii) each board of directors of each Subsidiary
of the Company ("SUBSIDIARY BOARDS"), and the directors of the Company and/or
its Subsidiary nominated by any Seller or Beneficiary shall have resigned so
that the Board and the Subsidiary Boards shall be made-up of all Purchaser
appointees, but so that properly constituted boards are in existence at all
times. Effective as of the Closing Date, the designees of the Purchaser shall be
appointed as legal representative of the Company and its each Subsidiary and any
legal representative appointed by any Seller or Beneficiary shall resign.
(k) Change of Bank Authorities. The delivery to the Purchaser of duly
completed bank authorities approved by each of the Company's bankers and the
Board and each of the Company's Subsidiaries' bankers and each Subsidiary Boards
authorising the operation of each of the Company's bank accounts solely by
nominees of the Purchaser.
(l) Delivery of Company Seal and Books & Records. The delivery to the
Purchaser of the Company's and its each Subsidiary's books and records, the
common seal and any other company seals of the Company and its Subsidiary
including without limitation to delivering all bank chops, company chops,
company seals and corporate record books.
(m) Personal Guarantees. Personal guarantees in substantially the same form
as set out in SCHEDULE B have been provided to the Purchaser by Xx. Xxx and Xx.
Xxxx respectively.
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(n) Financial Results. The completion of an audit of the financial results
of the Company and its Subsidiaries for 2005 shall be conducted at the expense
of the Company under Hong Kong GAAP.
(o) Oriental Appointment. The purported appointment of Oriental Patron Asia
Limited in connection with a potential listing of HK Online Games on the Growth
Enterprise Market of Hong Kong shall be withdrawn/cancelled and voided and
Oriental shall be notified in writing accordingly.
(p) Travia 2 - Business Plan. A business plan for the launch of Travia 2
including details of the plan to incorporate the existing user base in a form as
attached as SCHEDULE G hereof has been delivered to the Purchaser.
(q) No Default under Agreements. There shall have been no material default
by any of the Warrantors under each of the following agreements (i) Option
Agreement; (ii) Security Agreement (the "SECURITY AGREEMENT") both made as of
February 27, 2004 by the Company, Hong Kong Online Games Investment Holding
Limited, a company wholly owned by the Company and 17game in favor of the
Purchaser (as amended); (iii) Shareholders Agreement (the "SHAREHOLDERS
AGREEMENT") made as of February 27, 2004 by and among the Purchaser, the
Company, the Warrantors and 17game (as amended); (iv) Share Purchase Agreement
(the "FIRST SHARE PURCHASE AGREEMENT") made as of August 27, 2004 by and among
the Purchaser, the Company, Tridal, Xx. Xxx; (v) Share Subscription and Purchase
Agreement (the "SECOND SHARE PURCHASE AGREEMENT") made as of August 12, 2005 by
and among the Purchaser, the Company, Tridal, Skynet, Xx. Xxx and Xx. Xxxx.
(r) Key Positions. After consultation with Xx. Xxx and Xx. Xxxx, effective
as of the Closing Date, at most three (3) designees of the Purchaser shall have
been appointed to senior management positions of the Company or 17game or the
Company's other Subsidiaries at the Purchaser's sole discretion.
4.2 Conditions to Closing by Sellers.
The obligations of the Sellers under this Agreement are subject to the
satisfaction of the following conditions precedent by the Purchaser on or before
the Closing, which may be waived by the Sellers in whole or in part at their
sole discretion:
(a) Representations and Warranties. Each of the representations and
warranties made by the Purchaser in this Agreement shall be true and correct in
all material respects.
(b) Performance. The Purchaser shall have performed and complied with, each
agreement, covenant and obligation required by this Agreement to be so performed
or complied with by the Purchaser at or before the Closing.
(c) Consents and Approvals. All consents, approvals and actions of, filings
with and notices to any third party, Governmental or Regulatory Authority
necessary to permit either Seller and the Company to perform their respective
obligations under this Agreement and to consummate the transactions contemplated
hereby and thereby shall have been duly obtained, made or given, and shall be in
full force and effect as at the Closing Date. No statute, rule or regulation,
order, decree or injunction will have been enacted, entered, promulgated or
enforced by any court or Governmental or Regulatory Authority of competent
jurisdiction which enjoins or prohibits the consummation of the transactions
contemplated by this Agreement.
(d) Legal Action. As of the Closing Date, there will not be any actual
written threats or any action, proceeding or other application pending before
any court or Governmental or Regulatory
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Authority which will have Material Adverse Effect on the transactions
contemplated hereby.
(e) Total Consideration. The Sellers shall have received duly executed
transfers of the Total Consideration in its favor pursuant to Section 2 hereof,
with Tridal Restricted Shares and Skynet Restricted Shares in a registerable
form and in accordance with Xxxxx.xxx's Constitution representing such shares,
together with share certificates for such shares and all other consents,
approvals and/or documents needed by the Sellers to register the transfers and
obtain ownership of such shares as the Sellers may require.
4.3 The Purchaser and the Sellers acknowledge that except for a condition
to be completed by the Purchaser as required under Section 4.2(e) above which
can be completed by March 27, 2006, all the conditions precedent listed under
Sections 4.1 and 4.2 can be fully completed or waived on March 17, 2006. If
either of the Purchaser or the Sellers asserts in writing (the "REQUESTING
PARTY") that any of the conditions precedent cannot be completed or waived on
March 17, 2006, this Agreement shall be automatically terminated. Each Party's
further rights and obligations cease immediately on termination, but termination
does not affect each Party's accrued rights and obligations at the date of
termination. The Requesting Party shall be liable for any loss, including but
not limited to any cost and expenses that are incurred by the non-Requesting
Parties during the preparation for this Agreement and reasonable legal or other
costs associated with the enforcement or realisation of such indemnity, suffered
by the non-Requesting Parties due to the termination of this Agreement.
4.4 In the event that a condition to be completed by the Purchaser as
required under Section 4.2(e) above is not fulfilled on March 27, 2006, the
Purchaser agrees to pay a liquidated damage of US$ 3,000 on a daily basis from
March 28, 2006 until such a condition under Section 4.2(e) can be fully
completed. However, notwithstanding the preceding sentence, if the Purchaser
still cannot fulfill the condition under Section 4.2(e) on April 7, 2006, then
the Parties hereto shall not be bound to proceed with the Closing and this
Agreement shall automatically be terminated. However, in addition to the
liquidated damages payable by the Purchaser to the Sellers, the Purchaser shall
be liable for any loss, including but not limited to any cost and expenses that
are incurred by the Sellers during the preparation for this Agreement due to the
termination of this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE WARRANTORS
5.1 The Warrantors hereby jointly and severally represent and warrant to
the Purchaser as of the date hereof and as of the Closing Date as follows:
(a) Corporate Status. Each of the Sellers, the Company and its each
Subsidiary is a company duly organized, validly existing and in good standing
under the laws of the jurisdiction where it was incorporated.
(b) Power and Authority. Each of the Warrantors has full power and
authority to execute and deliver, and to perform in accordance with this
Agreement, and has taken all necessary action to authorize and approve the
execution, delivery and performance of this Agreement and the transactions
contemplated herein.
(c) Enforceability. This Agreement has been duly executed and delivered by
each of the Warrantors and constitutes the legal, valid and binding obligation
of such Warrantor, enforceable against such Warrantor in accordance with its
respective terms, except enforcement thereof (whether in
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proceedings at law or in equity) may be limited by bankruptcy and insolvency
laws and by other laws affecting the rights of creditors generally.
(d) Non-Contravention. The execution and delivery by each Warrantor of this
Agreement, the consummation of the transactions contemplated herein, and the
compliance by such Warrantor with the terms and provisions hereof do not result
in or constitutes, and will not result in or constitute (with or without due
notice or lapse of time or both): (i) a default, breach or violation of its
Memorandum and Articles of Association, as amended, or any other organizational
document or any material agreement to which it is a party, or by which any of
its properties or assets is bound; (ii) a violation of any statute, rule,
regulation, order, writ, judgment, injunction, determination, award or decree of
any court, public body or authority or any other restriction of any kind or
character by which it or any of its properties or assets may be bound or
subject; or (iii) an event requiring it to give notice, complete any
registration, deregistration, filing or application or seek any consent,
approval, authorization, order license, qualification, permit or waiver except
for those that would have been given, completed or obtained prior to the Closing
Date.
(e) Capitalization.
(i) the authorized capital stock of the Company consists of 50,000
ordinary shares of par value US$1.00. As of the date hereof, there are
outstanding 47,248 ordinary shares of par value US$1.00. None of the Equity
Interest has been transferred, sold, exchanged, assigned or given as a
gift, granted as a security interest, pledged or encumbered, made part of
any voting trust or other agreement or arrangement with respect to the
transfer of voting rights therein;
(ii) the authorized capital stock of each Subsidiary is set out in
SCHEDULE A;
(iii) all outstanding shares of capital stock of the Company and its
each Subsidiary have been duly authorized and validly issued and are fully
paid and non-assessable. Except as set forth in this Section 5.1(e), there
are no outstanding: (1) shares of capital stock or voting securities of the
Company: (2) securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company; or (3) options
or other rights to acquire from the Company, or other obligations of the
Company to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of
the Company (the items in Sections 5.1(e)( iii)(1), 5.1(e)( iii)(2) and
5.1(e)( iii)(3) being referred to are collectively the "COMPANY
SECURITIES"). There are no outstanding obligations of the Company or any of
its Subsidiary to repurchase, redeem or otherwise acquire any Company
Securities;
(iv) Except for the purported option grant to purchase 1,260 shares of
the Company at the strike price of US$238.09 offered to Xx. Xxxxx Xxx Xxxx
Xxxxx ("XX. XXXXX") under the offer letter dated August 31, 2005, there is
no option, right to acquire, pre-emptive rights, conversion rights,
mortgage, charge, pledge, lien or other form of security or any other
agreement or commitment of any nature whatsoever, over or affecting the
Equity Interest or any of the authorized capital stock of any Subsidiary of
the Company and there is no agreement or commitment to give or create any
of the foregoing.
(v) there are no commitments in place under which the Company or its
any Subsidiary is obligated at any time to issue any shares or other
securities of the Company or its Subsidiary as the case may be.
(vi) there is no restriction(s) on sale or transfer of any of the
Equity Interest to the Purchaser whatsoever.
10
(f) Financial Data/Financial Performance. The financial reports and books,
bank statements of the Company or its Subsidiaries disclosed as of February 28,
2006 in SCHEDULE E to the Purchaser as of Closing are free of any material
error, and are not misleading or inaccurate in any material respect.
(g) User Data. The user data of the Company or its Subsidiaries disclosed
as of February 28, 2006 and having been notarized by Beijing Haidian District
Notary Office on March 15, 2006 is free of any material error, and is not
misleading or inaccurate in any material respect.
(h) Books and Records. The minute books, statutory books and registers and
other similar records of the Company and its Subsidiaries, as made available to
the Purchaser prior to the execution of this Agreement, contain a true and
complete record of all actions taken at all Board, shareholder meetings and by
all written consents in lieu of meetings of the equity holders, the boards of
directors of the Company, respectively. The share transfer ledgers and other
similar records of the Company, as made available to the Purchaser prior to the
execution of this Agreement, accurately reflect all record transfers prior to
the execution of this Agreement in the equity of the Company.
(i) Material Contracts. SCHEDULE H contains a list of all contracts with a
single contract value that exceeds US$10,000, or a series of contracts value
aggregately exceed US$30,000 or any guarantee document (the "MATERIAL
CONTRACTS") to the Purchaser.
(j) Title to Equity Interest. The Tridal Held Shares and the Skynet Held
Shares have been duly and validly issued in compliance with all applicable law
and are fully paid, non-assessable and was not issued in violation of or subject
to any preemptive rights, put or call rights or obligations, rights of first
refusal, anti-dilution rights or liquidation rights or other rights to subscribe
for or purchase Company Securities. The Sellers are the record and beneficial
owner of, or the agent of the beneficiary owner, and has good and marketable
title to the Tridal Held Shares and the Skynet Held Shares respectively that
they are selling to the Purchaser hereunder, free of any and all liens, options,
pre-emptive rights, conversion rights, mortgage, charge, pledge, debts or
obligations in favor of, or claims of, any other Person, except the obligations
created by this Agreement.
(k) Except as disclosed in SCHEDULE D to the Purchaser, there are no
liabilities of the Company or its any Subsidiary of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or otherwise, and there
is no existing condition, situation or set of circumstances which could
reasonably be expected to result in such a liability, other than: (i)
liabilities provided for in the financial information provided to the Purchaser
as attached in SCHEDULE E; (ii) other undisclosed liabilities which,
individually or in the aggregate, are not material to the Company and its
Subsidiaries, taken as a whole.
(l) Litigation. Except as disclosed in SCHEDULE D, there is no action,
claim, suit, inquiry, proceeding or investigation by or before any court or
governmental agency pending or threatened against or involving any of the
Sellers, the Company or any of the Company's Subsidiaries which could have a
Material Adverse Effect on the transactions contemplated herein.
(m) Intellectual Property. There is no Intellectual Property owned by the
Sellers and/or the Beneficiaries necessary for the operation and business of the
Company and/or its Subsidiaries.
(n) Game Licenses. Except for the dispute involving the Travia game license
and the expiration of the term of Droiyan game license disclosed in SCHEDULE D,
the licenses for the exclusive right to operate the online games Yulgang and
Travia in the PRC from the respective games' developer and owners are legal,
valid, binding, enforceable, in good standing and in full force and effect.
Except for the dispute involving the Travia game license, none of the game
licenses are subject to any outstanding
11
injunction, judgment, order, decree, ruling, or charge and, based on the
knowledge of the Warrantors, no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand has been filed or is
threatened which challenges the legality, validity, enforceability, or use of
the game licenses.
(o) Employment. Except for the information disclosed in SCHEDULE D, with
respect to each agreement with employees of the Company, 17game and any other
Subsidiary of the Company, the Company, 17game and each Subsidiary of the
Company have duly performed and complied with all of their obligations in all
material respects (including, but not limited to, the making all payments for
services rendered and other benefits).
(p) Related Party Transactions. Except as incurred in the ordinary course
of business on an arm's-length basis, (i) there are no inter-company Liabilities
between the Company or its any Subsidiary, on the one hand, and any Sellers or
Beneficiaries, on the other, (ii) neither of any Sellers nor Beneficiaries
provides or causes to be provided any assets, services or facilities to the
Company, or any of its Subsidiaries, (iii) none of the Company, or any of its
Subsidiaries provides or causes to be provided any assets, services or
facilities to any Sellers or Beneficiaries and (iv) none of the Company, or its
any Subsidiaries beneficially owns, directly or indirectly, any assets of any
Sellers or Beneficiaries.
(q) Qualified to do Business. The Company and its each Subsidiary are duly
qualified, licensed or admitted to do business in each of the jurisdiction in
which it conducts business to the extent that such qualification, licensure or
admission is required by that jurisdiction's laws and has full corporate power
to own its properties, assets and business and to carry on its business
operations.
(r) Taxes. Except for the information disclosed in SCHEDULE D, the Company
and its each Subsidiary have duly filed all returns, computations, notices and
information required to be made or provided by it for any tax purpose (including
without limitation, income tax, capital gains tax, goods and services tax,
fringe benefits tax, payroll tax, group tax, water and municipal rates and stamp
and customs duty) (the "TAX OR DUTY RETURN") and the same have been made or
given within the requisite periods and on a proper basis and when made were true
and accurate in all material respects and are up to date and none of them is or
likely to be the subject of any dispute with any tax authority. Moreover, except
for the information disclosed in SCHEDULE D, the Company and its each Subsidiary
have paid when due, and has withheld, deducted and accounted to the relevant
authorities for, all taxes, levies, assessments, contributions, fees, rates,
duties, and other governmental or municipal charges or impositions (including
without limitation provisional taxation, income tax, capital gains tax, goods
and services tax, fringe benefits tax, payroll tax, group tax, water and
municipal rates and stamp and customs duty) which it has become liable to pay,
withhold, deduct or account for on or before the date hereof. For the purposes
of this section "a liability to pay" includes a liability to pay any penalty or
interest.
(s) Disclosure and Information. Except for the information disclosed in
SCHEDULE D, no representation, warranty or statement contained in this Agreement
and given by the Warrantors, or on their behalf and no statement made by them or
on their behalf contains any untrue statement or omits to state a fact necessary
in order to make the statements herein or therein, in the light of the
circumstances under which they were made, not misleading in any respect.
(t) No Bankruptcy or Insolvency. Except for the information disclosed in
SCHEDULE D, (1) no order has been made, petition presented or resolution passed
for the liquidation, bankruptcy or dissolution of the Company or any of its
Subsidiaries or the Seller or for the appointment of a liquidation committee to
the Company or any of its Subsidiaries or the Seller; (2) the Company or any of
its Subsidiaries or the Seller is not insolvent or unable to pay its debts as
they fall due; (3) no distress, execution or other process has been levied on an
asset of the Company or any of its Subsidiaries or the Seller.
12
(u) Disclosure in connection with Travia Dispute. All material facts or
circumstances relating to the dispute involving the Travia game license have
been fully and properly disclosed to the Purchaser and there are no facts or
circumstances which have not been disclosed to the Purchaser which might
reasonably be expected adversely to affect the financial position, operations,
profitability or prospects of the Company as a result of the dispute involving
the Travia game license. All information given either in writing (whether in
document, email, spreadsheet or other form) by, or on behalf of, the Company,
either Seller, (including any director and the manager of overseas business
division of the Company and 17game) to the Purchaser in connection with the
dispute involving the Travia game license is true and correct in all material
respects and none of the information provided to the Purchaser by, or on behalf
of, the Company or either Seller (including any director and the manager of
overseas business division of the Company and 17game) is misleading in any
particular, whether by omission or otherwise.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PURCHASER
6.1 The Purchaser represents and warrants to each Warrantors, as of the
date hereof and as of the Closing Date, as follows:
(a) Corporate Status. It is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction where it was
incorporated.
(b) Power and Authority. It has the full corporate power and authority
to execute and deliver, and to perform in accordance with this Agreement, and
has taken all necessary actions to authorize and approve the execution, delivery
and performance of this Agreement and the transactions contemplated herein.
(c) Enforceability. This Agreement has been duly executed and
delivered by it, and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its respective terms, except
enforcement thereof (whether in proceedings at law or in equity) may be limited
by bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally.
(d) Non-Contravention. The execution and delivery by the Purchaser of
this Agreement, the consummation of the transactions contemplated herein and
therein, and the compliance by the Purchaser with the terms and provisions
hereof and thereof do result in or constitute, and will not result in or
constitute (with or without due notice or lapse of time or both): (i) a default,
breach or violation of the Memorandum and Articles of Association of the
Purchaser, as amended, or any other organizational document of the Purchaser or
any material agreement or contract to which the Purchaser is a party, or by
which any of their properties or assets is bound; or (ii) a violation of any
statute, rule, regulation, order, writ, judgment, injunction, determination,
award or decree of any court, public body or authority or any other restriction
of any kind or character by which the Purchaser or any of its properties or
assets may be bound or subject; or (iii) an event requiring it to give notice,
complete any registration, deregistration, filing or application or seek any
consent, approval, authorization, order license, qualification, permit or waiver
except for those that would have been given, completed or obtained prior to the
Closing Date.
(e) Litigation. There is no action, claim, suit, inquiry, proceeding
or investigation by or before any court or governmental agency pending or
threatened against or involving the Purchaser which could have a Material
Adverse Effect on the transactions contemplated herein or could have a material
negative impact on the stock price of Xxxxx.xxx.
13
(f) Disclosure and Information. No representation, warranty or
statement contained in this Agreement and given by it, or on its behalf and no
statement made by it or on its behalf contains any untrue statement or omits to
state a fact necessary in order to make the statements herein or therein, in the
light of the circumstances under which they were made, not misleading in any
respect. Except for the change of chief financial officer of Xxxxx.xxx and the
profit and earning of Xxxxx.xxx of year 2005 which have been properly disclosed
to the Sellers, there is no event (the "EVENT") having taken place before the
Closing which shall have Material Adverse Effect on the trading price of
Xxxxx.xxx Share and should be publicly announced within thirty (30) days after
the Closing Date.
(g) Available Funds. The Purchaser shall have available to it as of
the date hereof and as of the date on the Closing Date, cash or capital
commitments sufficient to fund the Total Consideration.
ARTICLE 7
FURTHER UNDERTAKINGS
7.1 Termination of Agreements. Subsequence to Closing, the Parties agree
that the Loan Agreement, Shareholders Agreement, Option Agreement and Security
Agreement shall cease their effectiveness and be terminated.
7.2 No Purchase of Xxxxx.xxx Shares. The Warrantors agree not to purchase
or cause their Affiliates to purchase the shares of Xxxxx.xxx within forty-five
(45) days prior to the Window Period.
7.3 From February 28, 2006 until Closing, the Sellers must, unless the
Purchaser otherwise agrees in writing: (a) carry on the business of the Company
and its Subsidiaries in the normal ordinary course, use efforts consistent with
past practice and policies to preserve intact their respective present business
organization, keep available the services of their respective present officers,
consultants and employees and preserve their relationships with customers,
suppliers and distributors and others having business dealings with them; (b)
use all reasonable endeavors to preserve the goodwill and assets of the Company
and its Subsidiaries; (c) continue to collect debts in relation to the Company
and its Subsidiaries in a manner which is consistent with past practice. The
Sellers shall cause the officers of the Company to confer at such times as the
Purchaser may reasonably request with representatives of the Purchaser to report
operational matters of a material nature and to report the general status of the
ongoing operations of the business of the Company and its each Subsidiary.
Notwithstanding the foregoing, the Sellers and the Company may not and will not
without the prior written consent of the Purchaser (which shall not be
unreasonably withheld):
(a) other than in the ordinary course of business consistent with prior
practice, enter into any commitment or transaction, including but not limited to
any purchase of Assets (other than supplies or cash equivalents) for a purchase
price in excess of US$5,000;
(b) other than in the ordinary course of business consistent with prior
practice, enter into or amend any agreements pursuant to which any other party
is granted support, service, marketing or publishing rights;
(c) other than in the ordinary course of business consistent with prior
practice, enter into or terminate any contracts, arrangements, plans,
agreements, leases, licenses, franchises, permits, indentures, authorizations,
instruments, or commitments, or amend or otherwise change in any respect the
terms thereof in an adverse manner; or
(d) modify in any material respect existing discounts or other terms and
conditions with third
14
parties in a manner adverse to the Company or its any Subsidiary.
(e) without obtaining the prior written consent of the Purchaser, neither
any Sellers nor the Company will: (i) incur any indebtedness for borrowed money
by way of direct loan, sale of debt securities, purchase money obligation,
conditional sale, guarantee or otherwise; (ii) cause any existing debt facility
to be drawn down.
7.4 Cooperation. Each Purchaser, Seller, Beneficiary and the Company agrees
and undertakes to promptly use its reasonable efforts to assist each other to
execute all documents, papers, forms, authorizations, declarations or oaths,
obtain the consents, releases and waivers of third parties and Governmental or
Regulatory Authority, and take any other steps that may be necessary to do so in
order to consummate the transactions contemplated herein.
7.5 Non-Competition. For the purpose of this Section 7.5, the following
definitions shall have the following meaning:
"Business" means the business conducted by the Company, 17game and
other Company's Subsidiaries as at the commencement of the Restricted Period and
during the preceding calendar year in relation to online game business.
"Restrained Business" means a business or operation substantially
similar to, or competitive with, the Business as at the Closing.
"Restraint Area" means each of the following:
(i) PRC;
(ii) Hong Kong;
(iii) Taiwan; and
(iv) Macau;
"Restraint Period" means the period for twelve (12) months upon the
termination of Xx. Xxx'x Employment Contract or the termination of Xx. Xxxx'x
Employment Contract.
(a) Neither Seller nor Beneficiary shall during any of the Restraint Period
and within any of the Restraint Areas conduct, carry on or promote (whether on
its own account, in partnership, in joint venture or as employee or agent of or
manager for any other person) any Restrained Business.
(b) During Restraint Period and within any Restraint Area, the Sellers and
the Beneficiaries must not:
(i) secure or seek to attract the custom of any person who is at
commencement of the Restricted Period, a customer or a supplier including
any game licensor of the Company, 17game or the Company's Subsidiaries;
(ii) use a name which is similar to the present name of the Company,
17game or any of the Company's Subsidiaries or use any of the Intellectual
Property of the Company or its Subsidiaries;
(iii) disclose or use to its advantage or the disadvantage of the
Purchaser: (1) the name of any customer or supplier including any game
licensor of the Company, 17game or the Company's Subsidiaries; (2) any of
the Intellectual Property of the Company or its Subsidiaries; or (3) any of
the
15
trade secrets, secret or confidential operations, processes or dealings of,
or any confidential information relating to, the Company or its
organisation, finances, transactions or affairs;
(iv) seek to engage or engage the services of any person who is or
becomes an employee of service provider or supplier including any game
licensor to the Company, 17game or the other Company's Subsidiaries.
(c) Each of the restraints in this Section 7.5 resulting from the various
combinations of the Restraint Period and the Restraint Areas is a separate,
severable and independent restraint and the invalidity or unenforceability of
any of such restraints does not affect the validity or enforceability of any of
the other restraints in those sections.
(d) The Sellers and the Beneficiaries acknowledge that each of the
restraints in Section 7.5 is reasonable in its extent (as to duration,
geographical area and restrained conduct) having regard to the interests of each
Party to this Agreement and goes no further than that is reasonably necessary to
protect the Purchaser as buyer of the Equity Interest in respect of the goodwill
of the Company and the Business.
ARTICLE 8
INDEMNIFICATION; LIMITATIONS ON LIABILITIES
8.1 Indemnification of the Company and the Purchaser.
(a) The Beneficiaries and the Sellers shall jointly and severally indemnify
the Company, the Purchaser and the Purchaser's and the Company's officers,
directors, shareholders in respect of, and hold each of them harmless from and
against, any and all loss or Liability suffered, incurred or sustained by any of
them, resulting from, arising out of or associated with:
(i) any material misrepresentation, inaccuracy in or material breach
of any representation or warranty or the material non-fulfilment of, or
material failure to perform, any covenant or agreement on the part of any
Beneficiaries and the Sellers contained in this Agreement;
(ii) any non-payment of any national, provincial or local taxes
payable by Xx. Xxx, Xx. Xxxx and Xiao Ri Fang, in connection with delivery
of the Total Consideration directly from the Purchaser to Xx. Xxx, Xx. Xxxx
and Xx. Xxxx Ri Fang provided that the Company, the Purchaser and Xxxxx.xxx
should use their reasonable efforts to assist Xx. Xxx, Xx. Xxxx and Xx.
Xxxx Ri Fang to achieve the best possible tax planning.
(iii) In the event that Xx. Xxx'x Employment Contract is terminated
prior to its first anniversary for any reason except for (a) termination by
Company or its Subsidiary, or (b) termination by mutual agreement between
Xx. Xxx and the Company or its Subsidiary, Xx. Xxx and Tridal agree to pay
the Purchaser the amount which shall be calculated by multiplying the
number of the then unvested Tridal Restricted Shares by the closing price
of Xxxxx.xxx Shares quoted on the Growth Enterprise Market in Hong Kong for
the last trading day preceding the date of the termination of employment.
If Xx. Xxx'x Employment Contract is terminated after its first anniversary
and before its second anniversary for any reason except for (a) termination
by the Company or its Subsidiary, or (b) termination by mutual agreement
between Xx. Xxx and the Company or its Subsidiary, Xx. Xxx and Tridal
jointly and severally agree to pay the Purchaser 50% of the amount which
shall be calculated by multiplying the number of the then unvested Tridal
Restricted Shares by the closing price of Xxxxx.xxx Shares quoted on the
Growth Enterprise Market in Hong Kong for the last trading day preceding
the date of the termination of
16
employment. However, in any event, Xx. Xxx agrees to give the Company three
(3)-month prior notice for termination of the Xx. Xxx'x Employment
Contract.
(iv) In the event that Xx. Xxxx'x Employment Contract is terminated
prior to its first anniversary for any reason except for (a) termination by
Company or its Subsidiary, or (b) termination by mutual agreement between
the Company and Xx. Xxxx, Xx. Xxxx and Skynet agree to pay the Purchaser
the amount which shall be calculated by multiplying the number of the then
unvested Skynet Restricted Shares by the closing price of Xxxxx.xxx Shares
quoted on the Growth Enterprise Market in Hong Kong for the last trading
day preceding the date of the termination of employment. If Xx. Xxxx'x
Employment Contract is terminated after its first anniversary and before
its second anniversary for any reason except for (a) termination by Company
or its Subsidiary, or (b) termination by mutual agreement between Xx. Xxxx
and the Company, Xx. Xxxx and Skynet jointly and severally agree to pay the
Purchaser 50% of the amount which shall be calculated by multiplying the
number of the then unvested Skynet Restricted Shares by the closing price
of Xxxxx.xxx Shares quoted on the Growth Enterprise Market in Hong Kong for
the last trading day preceding the date of the termination of employment.
However, in any event, Xx. Xxxx agrees to give the Company three (3)-month
prior notice for termination of the Xx. Xxxx'x Employment Contract.
(b) The Beneficiaries shall jointly and severally indemnify the Purchaser
and the Company and the Purchaser's and the Company's officers, directors and
shareholders in respect of, and hold each of them harmless from and against, 52%
of any and all loss or Liability suffered, incurred or sustained by any of them,
resulting from, arising out of or associated with any Enet CCR game license
dispute or any future dispute with mGame KRG (if any) provided however that the
total liabilities, obligations, losses, damages, penalties, claims, demands,
actions, suits, judgments and any and all reasonable costs and expenses
(including reasonable attorneys' fees and expenses) of whatsoever kind and
nature of such disputes shall be subject to an aggregate cap of US$ 520,000.
(c) If any of the Company, the Purchaser and the Purchaser's and the
Company's officers, directors and shareholders is entitled to indemnification
under this Section 8.1 for some or a portion of the loss or Liability suffered,
incurred or sustained by it but not for the total amount, each of the Sellers
and the Beneficiaries shall, jointly and severally, indemnify them for the
portion of such loss or Liability as to which any of them is so entitled.
8.2 Indemnifications of the Sellers and Beneficiaries.
(a) The Purchaser shall indemnify the Sellers and the Beneficiaries, the
Sellers' officers, directors, shareholders and the Sellers' and the
Beneficiaries' Affiliates in respect of, and hold each of them harmless from and
against, any and all loss or Liability suffered, incurred or sustained by any of
them, resulting from, arising out of or associated with any material
misrepresentation, inaccuracy in or material breach of any representation or
warranty or the material non-fulfilment of, or material failure to perform, any
covenant or agreement on the part of the Purchaser contained in this Agreement;
(b) Notwithstanding Section 8.2(a) above, the Purchaser shall indemnify the
Sellers and the Beneficiaries in respect of, and hold each of them harmless from
and against the losses resulting from misrepresentation under Section 6.1(f)
resulting in the decrease of the trading price of Xxxxx.xxx Shares. Such losses
to be indemnified by the Purchaser are the price difference which shall be
calculated between the Conversion Price of each Xxxxx.xxx Shares multiplying the
number of the Restricted Shares minus the number of the Restricted Shares
multiplying the closing price of each Xxxxx.xxx Shares quoted on the Growth
Enterprise Market in Hong Kong on the date of disclose the Event.
17
8.3 Method of Asserting Claims.
(a) A Party requesting the indemnification (the "INDEMNIFIED PARTY") shall
give the defaulting Party(ies) (the "INDEMNIFYING PARTY(IES)") notice of any
matter which such Indemnified Party has reasonably determined has given or could
give rise to a claim under this Agreement, within thirty (30) days of such
determination ("CLAIM NOTICE"), stating the amount of the loss, if known, and
method of computation thereof, and containing a reference to the provisions of
this Agreement in respect of which such claim is made or arises. The obligations
and Liabilities of the relevant Indemnifying Party(ies) under this Section 8
with respect to losses arising from claims of any third party which are subject
to the indemnification provided for in this Section 8 ("THIRD PARTY CLAIM")
shall be governed by and be contingent upon the following additional terms and
conditions: if an Indemnified Party shall receive notice of any Third Party
Claim, such Indemnified Party shall give the relevant Indemnifying Party(ies)
notice of such Third Party Claim within thirty (30) days of the receipt by the
Indemnified Party of such notice; provided, however, that the failure to provide
such notice shall not release the relevant Indemnifying Party(ies) from, or
provide a defense against, any of their obligations under this Section 8. If the
relevant Indemnifying Party(ies) acknowledge in writing their obligation to
indemnify the Indemnified Party hereunder against any losses that may result
from such Third Party Claim, then the relevant Indemnifying Party(ies) shall be
entitled to assume and control the defense of such Third Party Claim at their
expense and through counsel of their choice if they give notice of their
intention to do so to the Indemnified Party within five (5) days of the receipt
of such notice from the Indemnified Party; provided, however, that if there
exists or is reasonably likely to exist a conflict of interest that would make
it inappropriate in the reasonable judgment of the Indemnified Party in its sole
and absolute discretion for the same counsel to represent both the Indemnified
Party and the relevant Indemnifying Party(ies), then the Indemnified Party shall
be entitled to retain its own counsel in each jurisdiction for which the
Indemnified Party determines counsel is required, at the expense of the relevant
the Indemnifying Party(ies). In the event that the relevant Indemnifying
Party(ies) exercise the right to undertake any such defense against any such
Third Party Claim as provided above, the Indemnified Party shall cooperate with
the relevant Indemnifying Party(ies) in such defense and make available to the
relevant the Indemnifying Party(ies) all witnesses, pertinent records, materials
and information in the Indemnified Party's possession or under the Indemnified
Party's control relating thereto as is reasonably required by the relevant
Indemnifying Party(ies). Similarly, in the event the Indemnified Party is,
directly or indirectly, conducting the defense against any such Third Party
Claim, the relevant Indemnifying Party(ies) shall cooperate with the Indemnified
Party in such defense and make available to the Indemnified Party all such
witnesses, records, materials and information in the possession of the relevant
Indemnifying Party(ies) or under their control relating thereto as is reasonably
required by the Indemnified Party. No such Third Party Claim may be settled by
the relevant Indemnifying Party(ies) without the prior written consent of the
Indemnified Party.
(b) If the Indemnifying Party desires, or is required, to make the
Indemnified Party whole, then the Indemnifying Party shall, within fourteen (14)
days of receiving the Claim Notice, make an offer to settle the claim to the
Indemnified Party. The Indemnifying Party shall be liable for the full amount of
any claim plus interest at a commercial rate.
(c) For the avoidance of doubt, it is not necessary for an Indemnified
Party to incur expense or make payment before enforcing a right of indemnity
conferred by this Section and in any dispute the onus of disproving that a Third
Party Claim shall be on the Indemnifying Party.
ARTICLE 9
ANNOUNCEMENT
18
9.1 The Parties agree that the Purchaser shall ensure that Xxxxx.xxx should
not disclose the information related to the Beneficiaries (except for the
information that they will have signed an employment agreement with the Company
and the indemnity in connection with the termination of such employment
agreements) in any public announcement unless otherwise required to be disclosed
by a rule of Hong Kong Stock Exchange or other relevant regulatory authority.
ARTICLE 10
MISCELLANEOUS
10.1 Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and delivered by hand or sent through an
internationally recognized courier service or by facsimile transmission:
IF TO EACH OF THE WARRANTORS:
Address: x/x Xxxxxxx 00xxxx Xxxxxxx Technology Co., Ltd.
00/X, Xxxxx Xxxxxxxx, Xxx#0 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx, Xxxxxxx 000000, PRC
Fax: (0000)-00000000
(at such telephone or facsimile number as otherwise provided)
IF TO THE PURCHASER:
Address: c/o Xxxxx.xxx Inc.
00/X Xxxxxxxx Xxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxx
Xxxx Xxxx
Attention: Company Secretary
Fax: (000) 0000-0000
(at such telephone or facsimile number as otherwise provided)
All such notices and communications shall be deemed to have been duly given
and delivered: if delivered by hand, when personally delivered; if delivered by
courier, three Business Days after being dispatched; and, if sent by facsimile
transmission, when receipt acknowledged. Any of the above addresses may be
changed by notice given in accordance with this Section 10.1.
10.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Hong Kong Special Administrative Region ("HONG
KONG") of the PRC without giving effect to the conflicts of laws principles
thereof.
10.3 Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought against any
of the Parties in the courts of Hong Kong, and each of the Parties hereby
consents to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding and waives any objection to venue laid therein. For
purposes of this Agreement, process in any such suit, action or proceeding in
any such courts may be served on the Parties anywhere in the world.
19
10.4 Amendments; Waivers. This Agreement may be amended or otherwise
modified only upon the written agreement of each of the parties hereto. A breach
of any term or provision of this Agreement shall be waived only by written
instrument of the party entitled to the benefits thereof. No waiver of any
breach shall affect or alter this Agreement, but each and every term and
provision of this Agreement shall continue in full force and effect with respect
to any other then existing or subsequent breach thereof.
10.5 Severability. Any provision of this Agreement which is invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal or unenforceable in any other jurisdiction.
10.6 Counterparts. This Agreement shall be executed in ten (10) originals
by the Parties hereto, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
10.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
10.8 Successors and Assigns. Except as otherwise specifically provided
herein, this Agreement shall bind and inure to the benefit of each party's
successors and permitted assigns; provided that no party hereto shall assign any
of its rights hereunder or any interest herein without the prior written consent
of the other parties hereto, and any purported assignment without such written
consent shall be null and void.
10.9 Entire Agreement. This Agreement and the other documents and writings
referred to herein or delivered pursuant hereto, contain the entire
understanding of the parties hereto with respect to their subject matter. There
are no restrictions, agreements, representations, warranties, covenants or
undertakings other than those expressly set forth in such documents with respect
to the subject matter of this Agreement. This Agreement supersedes all prior
agreements and understandings, both written and oral, among the parties hereto
with respect to such subject matter.
(LEFT BLANK INTENTIONALLY)
20
IN WITNESS WHEREOF, the parties hereto have caused this Share Purchase
Agreement to be duly executed and delivered as of the day and year first above
written.
SELLERS:
Signed, sealed and delivered by
TRIDAL PACIFIC LIMITED
Signature of Authorized Representative: /s/ Dai Hong
--------------------------
Name of Authorized Representative: Dai Hong
Title of Authorized Representative: Director
Signed, sealed and delivered by
SKYNET GLOBAL LIMITED
Signature of Authorized Representative: /s/ Xxxxx Xxxxxxxx Xxxx
--------------------------
Name of Authorized Representative: Xxxxx Xxxxxxxx Xxxx
Title of Authorized Representative: Director
BENEFICIARIES:
HONG DAI
By: /s/ Dai Hong
--------------------------
Before: Name of Witness: /s/ Sun Haishan
--------------------------
Address of Witness: China Resources Building
20th Floor, Beijing
XXXXX XXXXXXXX XXXX
By: Xxxxx Xxxxxxxx Xxxx
Before: Name of Witness: Sun Haishan
Address of Witness: China Resources Building
20th Floor, Beijing
By: Sun Haishan
21
PURCHASER:
PRIME LEADER HOLDINGS LIMITED
Signature of Authorized Representative: /s/ Xxxxxx Xxx
--------------------------
Name of Authorized Representative: Xxxxxx Xxx
Title of Authorized Representative: CEO, Xxxxx.xxx
COMPANY:
EQUITY PACIFIC LIMITED
Signature of Authorized Representative: /s/ Dai Hong
--------------------------
Name of Authorized Representative: Dai Hong
Title of Authorized Representative: Director
22
SCHEDULE A
SUBSIDIARIES OF COMPANY
Place and date
Company name of Incorporation Incorporation number Capitalization Shareholdings
------------ ---------------- --------------------------- -------------- ------------------------
Hong Kong Online Games Hong Kong No.865957 HK$1,000,000 Equity Pacific 100%
Investment Holdings
Limited
(Chinese Characters)
Beijing 17game Network Beijing, PRC (Chinese Characters) US$1,000,000 Hong Kong Online Games
Technology Co., Ltd 019250 (Chinese Characters) Investment Holdings
(Chinese Characters) Limited 100%
Beijing Jizhi Wangyou Beijing, PRC (Chinese Characters) US$150,000 Hong Kong Online Games
Digital Network Co., 018896 (Chinese Characters) Investment Holdings
Ltd Limited 100%
(Chinese Characters)
Beijing Yiyou Beijing, PRC (Chinese Characters) US$1,000,000 Hong Kong Online Games
Interactive Network 020627 (Chinese Characters) Investment Holdings
Technology Co., Ltd Limited 51%
(Chinese Characters) (Chinese Characters) 49%
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx, XXX Xx.0000000000000 XXX 1,000,000 (Chinese Characters) 30%
Technology (RMB means the
23
Development lawful (Chinese Characters) 70%
Co., Ltd currency of
(Chinese Characters) the PRC)
(Chinese Characters) Beijing, PRC (Chinese Characters) 018896 US$150,000 Beijing 17game Network
Technology Co., Ltd 75%
(Chinese Characters) 21
(Chinese Characters) 25%
24
SCHEDULE B
PERSONAL GUARANTEE
25
SCHEDULE C-1
XXXXX XXXXXXXX XXXX - SKYNET BENEFICIAL OWNERSHIP REPRESENTATION
Reference is hereby made to the Share Purchase Agreement dated as of March
17, 2006 among Equity Pacific Limited, Prime Leader Holdings Limited, Tridal
Pacific Limited, Skynet Global Limited, Dai Xxxx, Xxxxx Xxxxxxxx Xxxx, Beijing
17game Network Technology Co Limited (the "SHARE PURCHASE AGREEMENT").
Capitalized terms used herein and not otherwise defined shall have the same
meaning given to such terms in the Share Purchase Agreement.
Each of Xxxxx Xxxxxxxx Xxxx (the (SKYNET BENEFICIAL OWNER)) and Skynet
hereby represents and warrants to the Company and Prime Leader the following:
(1) The Skynet Beneficial Owner holds a 74.5% beneficial interest in Skynet;
(2) In connection with making payment for the Skynet Held Shares, the Skynet
Beneficial Owner is entitled to receive the following amount of the Total
Consideration :
a. Cash: US$1,488,912
b. Restricted Shares: US$3,474,129
Each of the Skynet Beneficial Owner and Skynet acknowledges and agrees that
payment of the amount set forth above to the Skynet Beneficial Owner shall be
deemed to represent payment of the Total Consideration due to Skynet.
Skynet has requested the Company to deliver, and the Company has agreed to
deliver, the consideration amounts set forth above directly to the Skynet
Beneficial Owner. The Skynet Beneficial Owner agrees and warrants to the
Company, Prime Leader and Xxxxx.xxx, and each of their respective parents,
subsidiaries, affiliates, divisions, assigns, agents, directors, officers,
current or former employees, representatives and attorneys that he shall
indemnify each of the Company, Prime Leader and Xxxxx.xxx, and each of their
respective parents, subsidiaries, affiliates, divisions, assigns, agents,
directors, officers, current or former employees, representatives and attorneys,
and hold each of the Company, Prime Leader and Xxxxx.xxx, and each of their
respective parents, subsidiaries, affiliates, divisions, assigns, agents,
directors, officers, current or former employees, representatives and attorneys
harmless against any of non-payment of any and all social security, income tax,
tax related to employee benefits or retirement, any required insurance including
without limitation, professional indemnity, and other national, provincial or
local taxes or assessments in connection with the delivery of such amounts above
directly from the Company to the Skynet Beneficial Owner. In addition, the
Skynet Beneficial Owner specifically represents, warrants and covenants to the
Company, Prime Leader and Xxxxx.xxx, and each of their respective parents,
subsidiaries, affiliates, divisions, assigns, agents, directors, officers,
current or former employees, representatives and attorneys that to the extent
that he is subject to any withholding or deduction under income tax laws of any
jurisdiction with respect to the delivery of such amounts above directly from
the Company to the Skynet Beneficial Owner, that he will hold the Company, Prime
Leader and Xxxxx.xxx, and each of their respective parents, subsidiaries,
affiliates, divisions, assigns, agents, directors, officers, current or former
employees, representatives and attorneys harmless against any non-withholding or
non-deduction in connection therewith.
26
XXXXX XXXXXXXX XXXX
----------------------------------
SKYNET GLOBAL LIMITED
By
-------------------------------
Name: Xxxxx Xxxxxxxx Xxxx
Title:
---------------------------
27
SCHEDULE C-2 DATAHOUSE GROUP LIMITED - SKYNET BENEFICIAL OWNERSHIP
REPRESENTATION
Reference is hereby made to the Share Purchase Agreement dated as of March
17, 2006 among Equity Pacific Limited, Prime Leader Holdings Limited, Tridal
Pacific Limited, Skynet Global Limited, Dai Xxxx, Xxxxx Xxxxxxxx Xxxx, Beijing
17game Network Technology Co Limited (the "SHARE PURCHASE AGREEMENT").
Capitalized terms used herein and not otherwise defined shall have the same
meaning given to such terms in the Share Purchase Agreement.
Each of Datahouse Group Limited (the (SKYNET BENEFICIAL OWNER)) and Skynet
hereby represents and warrants to the Company and Prime Leader the following:
(1) The Skynet Beneficial Owner holds a 25.5% beneficial interest in Skynet;
(2) Skynet Beneficial Owner appoints Xx. Xxxx as his Agent to hold the
Restricted Shares, and agrees the Unvested Restricted Shares shall be
subject to forfeiture in the event the Beneficial Owner ceases to be
employed by Company, Xxxxx.xxx or any affiliate of Xxxxx.xxx;
(3) In connection with making payment for the Skynet Held Shares, the Skynet
Beneficial Owner is entitled to receive the following amount of the Total
Consideration :
a. Cash: US$509,628
b. Restricted Shares: US$1,189,131
Each of the Skynet Beneficial Owner and Skynet acknowledges and agrees that
payment of the amount set forth above to the Skynet Beneficial Owner shall be
deemed to represent payment of the Total Consideration due to Skynet.
Skynet has requested the Company to deliver, and the Company has agreed to
deliver, the consideration amounts set forth above directly to the Skynet
Beneficial Owner. The Skynet Beneficial Owner agrees and warrants to the
Company, Prime Leader and Xxxxx.xxx, and each of their respective parents,
subsidiaries, affiliates, divisions, assigns, agents, directors, officers,
current or former employees, representatives and attorneys that he shall
indemnify each of the Company, Prime Leader and Xxxxx.xxx, and each of their
respective parents, subsidiaries, affiliates, divisions, assigns, agents,
directors, officers, current or former employees, representatives and attorneys,
and hold each of the Company, Prime Leader and Xxxxx.xxx, and each of their
respective parents, subsidiaries, affiliates, divisions, assigns, agents,
directors, officers, current or former employees, representatives and attorneys
harmless against any of non-payment of any and all social security, income tax,
tax related to employee benefits or retirement, any required insurance including
without limitation, professional indemnity, and other national, provincial or
local taxes or assessments in connection with the delivery of such amounts above
directly from the Company to the Skynet Beneficial Owner. In addition, the
Skynet Beneficial Owner specifically represents, warrants and covenants to the
Company, Prime Leader and Xxxxx.xxx, and each of their respective parents,
subsidiaries, affiliates, divisions, assigns, agents, directors, officers,
current or former employees, representatives and attorneys that to the extent
that he is subject to any withholding or deduction under income tax laws of any
jurisdiction with respect to the delivery of such amounts above directly from
the Company to the Skynet Beneficial Owner, that he will hold the Company, Prime
Leader and Xxxxx.xxx, and each of their respective parents, subsidiaries,
affiliates, divisions, assigns, agents, directors, officers, current or former
employees, representatives and attorneys harmless against any non-withholding or
non-deduction in connection therewith.
28
DATAHOUSE GROUP LIMITED
----------------------------------
Name: Xiao Ri Fang
SKYNET GLOBAL LIMITED
By
-------------------------------
Name: Xxxxx Xxxxxxxx Xxxx
Title:
---------------------------
29
SCHEDULE D
DISCLOSED LETTER
30
SCHEDULE E
THE FINANCIAL REPORTS AND BOOKS, BANK STATEMENTS OF THE COMPANY OR ITS
SUBSIDIARIES DISCLOSED AS OF FEBRUARY 28, 2006
31
SCHEDULE F
EMPLOYMENT AGREEMENT FORM
32
SCHEDULE G
BUSINESS PLAN
33
SCHEDULE H
LIST OF MATERIAL CONTRACT
34
