EXHIBIT II
AGENCY PURCHASE AGREEMENT
This Agency Purchase Agreement (the "Agreement") is made as of
February 14, 2005 by and among Skyline Media Limited, Skyline Capital
International Limited and Xxxxxx Media Limited, each a limited liability company
organized under the laws of the British Virgin Islands (collectively, the
"Agents") and Xxxxxx Interactive Entertainment Limited, an exempted company
organized under the laws of the Cayman Islands (the "Purchaser") (each party
hereto individually a "Party" and collectively the "Parties"). All references to
"$" or "dollars" herein shall refer to United States dollars.
WHEREAS, the Agents are the beneficial owner of 688,015 ordinary
shares, par value $0.133 per share (the "Ordinary Shares") of Sina Corp, an
exempted company organized under the laws of the Cayman Islands ("Sina"), (such
688,015 Ordinary Shares, the "Existing Shares"). The Ordinary Shares are traded
on the NASDAQ National Market ("NASDAQ") under the symbol "SINA";
WHEREAS, the Agents acquired the Existing Shares on behalf of the
Purchaser and in furtherance of the Purchaser's investment objectives through
NASDAQ open market purchases prior to the date hereof in the amounts, at the
purchase prices, and with the actual transaction fees incurred set forth on
Schedule I hereto;
WHEREAS, the Purchaser holds 9,133,750 Ordinary Shares as of
February 9, 2005;
WHEREAS, the Purchaser may desire to acquire additional Ordinary
Shares and, until such time as the Purchaser allocates appropriate funding for
any such acquisitions of additional Ordinary Shares, the Purchaser has requested
the Agents to acquire additional Ordinary Shares (the "Additional Shares", and
together with the Existing Shares, the "Shares") on the open market on behalf of
the Purchaser and in furtherance of the Purchaser's investment objectives, and
the Agents desire to do so;
WHEREAS, in addition to acquiring the Additional Shares on behalf of
the Purchaser, the Agents desire to sell the Shares to Purchaser, and Purchaser
desires to purchase the Shares from the Agents; and
WHEREAS, the purchase of the Shares by the Purchaser from the Agents
and the Agents' purchase of Shares of behalf of the Purchaser each constitutes a
"related party transaction" within the meaning of the Purchaser's Audit
Committee Charter and, in accordance with Section 3.5(a) of the Purchaser's
Audit Committee Charter, has been reviewed, and unanimously ratified and
approved, by the Company's Audit Committee.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed:
1. Sale and Purchase. The Agents hereby agrees to irrevocably sell
to Purchaser, and Purchaser hereby agrees to purchase from the Agents, all of
the Shares at a purchase price equal to that actually paid by the Agents for the
Shares (the "Purchase Price"), such Purchase
Price representing the aggregate price, including transaction fees, paid by the
Agents in connection with their open market purchases of such Shares as set
forth on Schedule I hereto or as hereafter acquired, but without interest,
commissions or other fees that might otherwise be paid to the Agent, if any.
2. Payment. Payment for the Shares shall occur at such time as
Purchaser allocates appropriate funding for such purchase. At such time of
purchase, the Agents shall deliver the Shares to the Purchaser and the Purchaser
shall pay to the Agents the Purchase Price for the Shares by wire transfer of
immediately available funds to an account, or accounts, designated by the
Agents.
3. Irrevocable Proxy. Prior to the time of purchase in accordance
with Section 2, the Agents agree to hold the Shares as agent for the Purchaser
and hereby grant to the Purchaser an irrevocable proxy to vote and/or determine
to dispose of the Shares in the Purchaser's sole discretion.
4. Agents Account. None of the Agents nor any of their affiliates
shall purchase Ordinary Shares for their own account, or for the account of any
of their affiliates other than the Purchaser before the earlier of (i) February
14, 2006, (ii) written notification by the Company, consenting to such purchase
or terminating this Agreement.
5. Representations of Agents. Each Agent hereby jointly and
severally represents and warrants to Purchaser that: -
(a) Authorization. All acts and conditions required by law on
the part of such Agent necessary for the authorization, execution and delivery
of this Agreement and the transactions contemplated herein, and the performance
of all obligations of such Agent hereunder, have been duly performed and
obtained and this Agreement constitutes a valid and legally binding obligation
of such Agent, enforceable in accordance with its terms.
(b) Title to the Shares. The Agent has good and marketable
title to the Existing Shares and will have good and marketable title to any
Additional Shares to be transferred by Agent to the Purchaser under this
Agreement, free and clear of any lien, pledge, security interest or other
encumbrance, and, upon delivery of the Shares as provided for in this Agreement,
the Purchaser will acquire good and marketable title thereto.
(c) No Violation or Default. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or default of any provision
of any instrument, judgment, order, writ, decree or contract to which the Agent
is a party or by which the Agent is bound, or require any consent under or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either a violation or default under any such provision.
(d) No Action or Proceeding. There is no action, suit,
proceeding, or investigation pending or threatened against such Agent that
questions the validity of this Agreement or the right of Agent to enter into
this Agreement or to consummate the transactions contemplated hereby.
(e) Accuracy of Schedule I. Schedule I attached hereto is a
true, accurate and complete list setting forth each purchase by such Agent of
the Shares to be sold pursuant to this Agreement, including the date of each
such purchase, the number of Shares purchased on such date, the price paid per
Share for each such purchase and the actual transaction fees paid by such Agent
in connection with such purchases. Neither such Agent, nor any direct or
indirect affiliate, director, officer or shareholder of such Agent (other than
the Purchaser) owns, beneficially or of record, any securities of Sina other
than the Shares. Schedule I shall be updated from time to time by such Agent to
reflect the acquisition of Additional Shares. Any acquisition of Additional
Shares shall be made solely upon the request of the Purchaser from time to time.
(f) Not an Affiliate. Other than to the extent such Agent may
be deemed to be an affiliate in connection with the Shares subject to the
transactions contemplated hereby, such Agent is not, and was not at the time
such Agent purchased the Shares, an "affiliate" of Sina as such term is defined
in Rule 405 promulgated under the United States Securities Act of 1933, as
amended.
(g) Fees and Expenses. Other than the transaction fees set
forth on Schedule I (the "Transaction Fees"), such Agent has not and will not
incur any broker fees or commissions or other fees or expenses (other than the
original purchase price for the Shares) in connection with such Agent's
acquisition of the Shares.
6. Representations of Purchaser. Purchaser hereby represents and
warrants to Agent that:
(a) Authorization. All acts and conditions required by law on
the part of Purchaser necessary for the authorization, execution and delivery of
this Agreement and the transactions contemplated herein, and the performance of
all obligations of the Purchaser hereunder, have been duly performed and
obtained and this Agreement constitutes a valid and legally binding obligation
of the Purchaser, enforceable in accordance with its terms.
(b) No Violation or Default. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or default of any provision
of any instrument, judgment, order, writ, decree or contract to which the
Purchaser is a party or by which the Purchaser is bound, or require any consent
under or be in conflict with or constitute, with or without the passage of time
and giving of notice, either a violation or default under any such provision.
(c) No Action or Proceeding. There is no action, suit,
proceeding, or investigation pending or threatened against Purchaser that
questions the validity of this Agreement or the right of Purchaser to enter into
this Agreement or to consummate the transactions contemplated hereby.
7. Binding Effect. The Agreement shall be binding upon the Parties,
their heirs, legal representatives, successors and assigns.
8. Tax/Legal Consequences. The Agents and the Purchaser have each
reviewed with their own legal, tax and other advisors applicable legal and tax
consequences of the sale and
purchase of the Shares and the transactions contemplated by this Agreement. Each
Party is relying solely on its own advisors with respect to entering into this
Agreement and the transactions contemplated hereby. Each Party understands and
agrees that it, and not the other Party, shall be responsible for its own tax
liability that may arise as a result of the transactions contemplated by this
Agreement. The foregoing, however, does not limit or modify the representations
and warranties of the Parties set forth herein, or the right of each Party to
rely on the representations and warranties of the other Party set forth herein.
Notwithstanding the foregoing, the Purchaser shall reimburse the Agents for any
tax liability incurred by the Agents in their performance under this Agreement
in transactions made on behalf of the Purchaser.
9. No Third Party Beneficiaries. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon or give
to any person, firm, corporation or legal entity, other than the Parties, any
rights, remedies or other benefits under or by reason of this Agreement.
10. Governing Law. The Agreement shall in all respects be construed
in accordance with and governed by the laws of the state of New York, without
regard to conflict of laws principals of such jurisdiction or any other
jurisdiction.
11. Confidentiality. Except as otherwise required by law, including
any disclosure under U.S. securities laws, applicable NASDAQ requirements, or by
court order, the Agents shall keep confidential this Agreement, its terms and
existence, the transactions contemplated hereby, and the holdings and
transactions of the Purchaser in Ordinary Shares, and shall not disclose any
such documents or information to any person (other than the Purchaser) without
the prior written consent of Purchaser.
12. Mutual Drafting. This Agreement is the joint product of the
Parties, and each provision hereof has been subject to the mutual consultation,
negotiation and agreement of the Agents and the Purchaser, and shall not be
construed for or against any Party.
13. Counterparts. The Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
14. Further Assurances. Upon the terms and subject to the conditions
set forth in this Agreement, each Party agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other Party in doing, all things necessary, proper
or advisable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
15. Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
48 hours after being deposited in the regular mail as certified or registered
mail (airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party's address, or as
subsequently modified by written notice,
(a) if to Agent, to:
Skyline Media Limited, or Skyline Capital international
Limited,
or Xxxxxx Media Limited, as the case may be
Xx.0 Xxxxxx Xxxxxxxx, Xx.000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxx New District
Shanghai, 201203, P.R.C
Attention: Executive Officer
(b) if to Purchaser, to:
Xxxxxx Interactive Entertainment Limited
Xx.0 Xxxxxx Xxxxxxxx, Xx.000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxx New District
Shanghai, 201203, P.R.C
Attention: Chairman of the Board
16. Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of the parties or their
respective successors and assigns. Any amendment or waiver effected in
accordance with this Section 16 shall be binding upon the Parties and their
respective successors and assigns.
IN WITNESS WHEREOF, the Parties have signed this Agency Purchase
Agreement as of the date first written above.
AGENTS:
SKYLINE MEDIA LIMITED
/s/ Tianqiao Chen
---------------------------------------
By: Tianqiao Chen
Its: Director and Attorney in Fact
SKYLINE CAPITAL INTERNATIONAL LIMITED
By Xxxxxx Media Limited, its Director
/s/ Tianqiao Chen
---------------------------------------
By: Tianqiao Chen
Its: Director and Attorney in Fact
XXXXXX MEDIA LIMITED
/s/ Tianqiao Chen
---------------------------------------
By: Tianqiao Chen
Its: Director and Attorney in Fact
PURCHASER:
XXXXXX INTERACTIVE ENTERTAINMENT LIMITED
/s/ Tianqiao Chen
---------------------------------------
By: Tianqiao Chen
Its: Chief Executive Officer and Attorney in Fact