SHARE PURCHASE AGREEMENT
Exhibit
10.1
THIS
SHARE PURCHASE AGREEMENT (this “Agreement”) is made as of
October 2, 2009, by and among Pypo Digital Company Limited, an exempted company
organized under the laws of the Cayman Islands (“Purchaser”), Capital Ally
Investments Limited, a private limited company organized under the laws of the
British Virgin Islands (“Capital Ally”), and Arch
Digital Holdings Limited, a private limited company organized under the laws of
the British Virgin Islands (“Arch,” and together with
Capital Ally, “Sellers”). Each of
Purchaser and Sellers is a “Party” and collectively, the
“Parties.”
WHEREAS,
Capital Ally is the beneficial owner of 1,857,587 ordinary shares, par
value US$0.001 per share, of Pypo China Holdings Limited, an exempted company
organized under the laws of the Cayman Islands (“Pypo China”) (the “Capital Ally
Shares”);
WHEREAS,
Arch is the beneficial owner of 827,613 ordinary
shares, par value US$0.001 per share, of Pypo China (the “Arch Shares,” and
together with the Capital Ally Shares, the “Shares”); and
WHEREAS,
Purchaser desires to acquire the Shares, and Sellers desire to sell the Shares
to Purchaser, (the “Share
Purchase”), all upon the terms and subject to the conditions set forth in
this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE
I.
PURCHASE
AND SALE OF THE SHARES
Section
1.1 Purchase of the
Shares. Subject to and upon the terms and conditions of this
Agreement, at the closing of the transactions contemplated by this
Agreement (the “Closing”), each Seller shall,
or shall cause its authorized agent to, sell, transfer, convey, assign
and deliver to Purchaser all of its right, title and interest in and to the
Shares, free and clear of all Liens except for restrictions of general
applicability imposed by federal, state and foreign securities
laws.
Section
1.2 Purchase Price for
Shares.
(a) The
purchase price shall be an aggregate of US$22,528,828 for Sellers (the
“Purchase
Price”) for the Shares.
(b) Subject
to set off and deduction by Purchaser pursuant to Section 4.1 hereof, the
Purchase Price shall be paid to Sellers in a manner mutually acceptable to
Purchaser and Sellers as follows:
(i) Initial
Payment. US$700,000 and US$300,000 shall be payable to Capital Ally and Arch,
respectively, on the Closing Date (the “Closing Cash
Payment”).
(ii) Subsequent
Payment. US$14,885,155 and US$6,643,673 shall be payable to Capital Ally and
Arch, respectively, on or prior to March 31, 2010 (the “Subsequent Cash
Payment”).
Section
1.3 Closing. The
Closing shall take place at the offices of Xxxxxx & Xxxxxxx LLP, 4902
Xxx Xxx Tower, 88 Century Boulevard, in Shanghai, China at 10:00 a.m. Beijing
time (or at such other place and/or on such other date and time as mutually
agreed by the Parties ) (the “Closing Date”) as specified by
Purchaser within two (2) Business Days following the date of the
satisfaction or waiver of all of the conditions set forth in Sections 3.1 and
3.2 hereof
(other than those that are only capable of being satisfied on or as of the
Closing Date).
Section
1.4 Deliveries.
(a) At
the Closing, each Seller shall deliver, or shall cause to
be delivered, to Purchaser the following:
(i) An instruction
letter of transfer duly executed by such Seller that is required for the
sale and transfer of the applicable Shares;
(ii) The
closing certificate required by Section 3.1(b)
hereof;
(iii) The
Big Boy Representations Certificate, a form of which is attached hereto as Exhibit A; and
(iv) All
such other deeds, documents or deliveries as the Purchaser may from time to time
require in order to give effect to the purchase of the Shares by the Purchaser
or as otherwise may be necessary to give full effect to this
Agreement.
(b) At
the Closing, Purchaser shall deliver, or shall cause to be delivered, to
Sellers the following:
(i) The
Closing Cash Payment; and
(ii) The
closing certificate required by Section 3.2(b)
hereof.
Section
1.5 Reasonable Best
Efforts. The Parties shall use reasonable best efforts to
cause the fulfillment of the conditions to the Parties’ obligations to
consummate the transactions contemplated by this Agreement at or prior to
the Closing.
ARTICLE
II.
REPRESENTATIONS
AND WARRANTIES
Section
2.1 Seller Representations and
Warranties. Each Seller, severally and not jointly, represents,
warrants and covenants to Purchaser as of the date of this Agreement and as of
the Closing Date as follows:
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(a) Sellers. Such
Seller is a company duly organized, validly existing and in good standing
under the laws of the British Virgin Islands. Such Seller has all
necessary corporate power and authority to execute, deliver and perform
this Agreement.
(b) Authorization. The
execution, delivery and performance of this Agreement by
such Seller have been duly and validly authorized by such
Seller and by all other necessary corporate action on the part of such
Seller. This Agreement constitutes the legally valid and binding obligation
of such Seller, enforceable against such Seller in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditor rights generally. The
execution, delivery and performance of this Agreement by such Seller will
not violate, or constitute a breach or default (whether upon lapse of
time and/or the occurrence of any act or event or otherwise) under or
result in a conflict with, (i) the memorandum and articles of association or
other constitutional documents of such Seller, (ii) any applicable Law
by which such Seller or any of its assets is bound or (iii) any agreement
to which such Seller is a party or by which it or any of its assets is
bound.
(c) The Shares.
Such Seller beneficially owns (with Cede & Co. as the record holder
thereof) all of the Capital Ally Shares or Arch Shares, as the case may be, free
and clear of all Liens, except for restrictions of general applicability imposed
by federal, state and foreign securities laws. The Capital Ally Shares or
Arch Shares, as the case may be, are not subject to any voting trust or other
agreement relating to the voting thereof. Upon transfer by such Seller or
the third party designated by such Seller of the Capital Ally Shares or Arch
Shares from the joint brokerage account of Capital Ally and Arch to Purchaser’s
brokerage account, as the case may be, pursuant to this Agreement and the
consummation of the transactions contemplated hereby, Purchaser will acquire
beneficial ownership of the Capital Ally Shares or Arch Shares, as the case
may be, free and clear of any Liens created by or on behalf of such Seller
except for restrictions of general applicability imposed by federal, state and
foreign securities laws.
(d) Sellers’ Investment Sophistication.
Such Seller (a) has the requisite knowledge, sophistication and
experience in order to fairly evaluate a disposition of the Capital
Ally Shares or Arch Shares, as the case may be, including the risks associated
therewith, and (b) shall make its own independent investigation and
evaluation to the extent it deems necessary or appropriate concerning the
business, properties, results of operations and financial condition of Pypo
China and its subsidiaries (including relevant variable interest entity)
taken as a whole to make an informed decision regarding the sale of the
applicable Shares pursuant to this Agreement.
(e) No Reliance. In
making its decision to sell the Capital Ally Shares or Arch Shares, as the case
may be, pursuant to this Agreement, such Seller has not requested, or been
furnished with, or relied on any information concerning Pypo China, its
subsidiaries or Capital Ally Shares or Arch Shares, as the case may be,
provided to such Seller by Pypo China or its subsidiaries other than as
expressly set forth under this Agreement.
(f) Brokers and Finders.
Such Seller has not incurred any liability for any brokerage fees,
commissions or finders’ fees in connection with the transactions
contemplated hereby which could result in any liability being imposed on
Purchaser.
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Section
2.2 Purchaser Representations
and Warranties. Purchaser hereby represents and warrants to
Sellers as follows:
(a) Purchaser.
Purchaser is a company duly organized, validly existing and in good
standing under the laws of the Cayman Islands. Purchaser has all necessary
corporate power and authority to execute, deliver and perform this
Agreement.
(b) Authorization.
The execution, delivery and performance of this Agreement by
Purchaser has been duly and validly authorized by the Purchaser and by all other
necessary corporate action on the part of Purchaser. This Agreement
constitutes the legally valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws and equitable principles relating to or
limiting creditors rights generally. The execution, delivery and performance of
this Agreement by Purchaser will not violate, or constitute a breach or default
(whether upon lapse of time and/or the occurrence of any act or event or
otherwise) under or result in a conflict with, (i) the memorandum and articles
of association or other constitutional documents of Purchaser, (ii) any
applicable Law by which Purchaser or any of its assets is bound or (iii) any
agreement to which Purchaser is a party or by which it or any of its assets is
bound.
ARTICLE
III.
CONDITIONS
Section
3.1 Conditions Precedent to
Purchaser’s
Obligations. The obligations of Purchaser to be performed on
the Closing Date shall be subject to the satisfaction or waiver prior to or
at the Closing of each of the following conditions:
(a) Each
Seller shall have delivered an instruction letter of transfer duly executed
by such Seller that is required for the sale and transfer of Capital Ally Shares
or Arch Shares, as the case may be.
(b) The
representations and warranties set forth in Section 2.1 hereof shall be
true and correct as of the Closing Date and each Seller shall have
delivered to Purchaser a certificate dated the Closing Date and signed
by such Sellers’s authorized signatories to such effect.
(c) Each
Seller shall have duly executed and delivered to Purchaser the Big Boy
Representations Certificate.
(d) Each
Seller shall have performed and complied with all agreements required by
this Agreement to be performed or complied with by them on or prior to the
Closing.
(e) All
consents, authorizations (including the corporate authorizations), orders and
approvals of, filings or registrations with and the expiration of all
waiting periods imposed by, any third Person, including any Governmental
Authority, which are required for or in connection with the execution and
delivery by each Seller of this Agreement and the consummation by such
Seller of the Share Purchase contemplated hereby shall have been
obtained or made, in form and substance reasonably satisfactory to
Purchaser, and shall be in full force and effect.
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(f) No
action shall have been taken or threatened, and no Law shall exist or have
been enacted, promulgated or issued or deemed applicable to the
transactions contemplated hereby by any Governmental Authority that would
(i) make the consummation of the transaction contemplated hereby illegal
or substantially delay the consummation of any material aspect of the
transaction contemplated hereby, or (ii) render any Seller unable to
consummate the transaction contemplated hereby.
Section
3.2 Conditions Precedent to
Sellers’ Obligations.
The obligations of Sellers to be performed on the Closing Date shall
be subject to the satisfaction or waiver prior to or at the Closing of each
of the following conditions:
(a) Purchaser
shall have delivered to Sellers the Closing Cash Payment for the Shares to
be sold by Sellers by wire transfer in immediately available funds pursuant to
Section 1.2
hereof.
(b) The
representations and warranties set forth in Section 2.2 hereof shall be
true and correct as of the Closing Date and Purchaser shall have delivered
to Sellers a certificate dated as of the Closing Date and signed by an
executive officer of Purchaser to such effect.
(c) Purchaser
shall have performed and complied with all agreements required by this
Agreement to be performed or complied with by it on or prior to the
Closing.
(d) All
consents, authorizations, orders and approvals of, filings or registrations
with and the expiration of all waiting periods imposed by, any third
Person, including any Governmental Authority, which are required for or in
connection with the execution and delivery by the Purchaser of
this Agreement and the consummation by Purchaser of the Share
Purchase contemplated hereby shall have been obtained or made and
shall be in full force and effect.
(e) No
action shall have been taken or threatened, and no Law shall exist or have
been enacted, promulgated or issued or deemed applicable to the
transactions contemplated hereby by any Governmental Authority that would
(i) make the consummation of the transaction contemplated hereby illegal
or substantially delay the consummation of any material aspect of the
transaction contemplated hereby, or (ii) render the Purchaser unable to
consummate the transaction contemplated hereby.
Section
3.3 Notice. Sellers
hereby confirm that Purchaser has complied with the requirement for serving a
purchase notice as might be required under the memorandum and articles of
association or other constitutional documents of Purchaser or applicable Law,
and Sellers hereby waive any of their right and claim with respect to such
notice requirement.
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Section
3.4 Conditions
Subsequent. Each of the Parties undertakes to use
reasonable best efforts to execute, file and register all such additional
documents, instruments, agreements, certificates and assurances and do all such
other acts and things necessary to effect the sale, transfer and delivery of the
Shares. As soon as practicable after the Closing, the Parties shall
execute and deliver the cross-receipt acknowledging Sellers’ receipt of the
Closing Cash Payment and Purchaser’s receipt from Sellers of the Shares,
together with any instruction letter of transfer duly executed by Sellers
that are required for the sale and transfer of the Shares. As soon as
practicable after the payment in full of the Subsequent Cash Payment, Sellers
shall execute and deliver a receipt acknowledging Sellers’ receipt of such
payment.
ARTICLE
IV.
INDEMNIFICATION
Section
4.1 Indemnification.
(a) Each
Seller, severally and not jointly, agrees to promptly indemnify, and hold
harmless Purchaser, and its officers, directors, partners, Affiliates, attorneys
and representatives (collectively, “Purchaser Indemnified
Parties”) from, against, for and in respect of and pay any and all Losses
(as defined in Section
4.2 hereof) suffered,
sustained, incurred or required to be paid by any such party arising out of or
resulting from any material breach of any representation, warranty, covenant or
agreement of such Seller contained in this Agreement.
(b) Purchaser
agrees to promptly indemnify, and hold harmless, of Sellers and their
respective Affiliates, officers, directors, partners, attorneys and
representatives (collectively “Seller Indemnified Parties”)
from, against, for and in respect of and pay any and all Losses suffered,
sustained, incurred or required to be paid by any party arising out of or
resulting from any material breach of any representation, warranty, covenant or
agreement of Purchaser contained in this Agreement.
(c) To
the extent that any Seller has an indemnification obligation pursuant to this
Article IV, any of the Purchaser Indemnified Parties may set off the amount of
such indemnification against any amounts then due and unpaid to any of the
Sellers by any of the Purchaser Indemnified Parties within the time period
allowed for payment to such Seller. To the extent that any Purchaser
Indemnified Party has an indemnification obligation pursuant to this Article IV,
any of the Sellers may set off the amount of such indemnification against any
amounts then due and unpaid to any of the Purchaser Indemnified Parties by any
of the Sellers within the time period allowed for payment to such Purchaser
Indemnified Party.
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Section
4.2 Definition of
Losses. For purposes of this Article IV, “Losses” shall mean all
damages, awards, judgments, assessments, fines, penalties, charges, costs and
expenses and other payments (including punitive or consequential damages)
however suffered or characterized, all interest thereon, all costs and expenses
of investigating any claim, lawsuit or arbitration and any appeal therefrom, all
reasonable attorneys’, accountants’, investment bankers’, and expert witness’
fees incurred in connection therewith, whether or not such claim, lawsuit or
arbitration is ultimately defeated and, subject to this Section 4.2, all amounts paid
incident to any compromise or settlement of any such claim, lawsuit or
arbitration; provided, however, that any compromise or settlement shall not be
entered into without the consent of the Party from whom indemnification is
sought (such consent not be unreasonably withheld).
Section
4.3 Maximum Amount
Payable. The maximum amount of Losses for which Purchaser
shall be liable to any Seller, or for which any Seller shall be liable to
Purchaser, in any claim under this Agreement, shall not exceed the applicable
Purchase Price payable to such Seller.
ARTICLE
V.
MISCELLANEOUS
Section
5.1 Notices. Except
as may be otherwise provided herein, all notices, requests, waivers and other
communications made pursuant to this Agreement shall be in writing and shall be
conclusively deemed to have been duly given (a) when hand delivered to the other
Party; (b) when received when sent by facsimile at the number set forth below;
or (c) two (2) Business Days after deposit with an overnight delivery service,
postage prepaid, addressed to the parties as set forth below with
next-business-day delivery guaranteed, provided that the sending Party receives
a confirmation of delivery from the delivery service provider.
If to Capital Ally, to:
Capital
Ally Investments Limited
48/F,
Bank of China Tower
0 Xxxxxx
Xxxx
Xxxxxxx,
Xxxx Xxxx
Attention:
Xxx Xxxxx/Kong Xxx Xx
Fax:
(000) 0000 0000
If to Arch, to:
Arch
Digital Holdings Ltd.
x/x XXX
Xxxxxxxx (XX) Xxxxxxx
00/X, Xx.
Xxxx’s Xxxxxxxx
00 Xxxxxx
Xxxx
Xxxxxxx,
Xxxx Xxxx
Xxxxxxxxx:
Xxxxx Xxx
Fax:
(000) 0000 0000
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If to Purchaser, to:
Pypo
Digital Company Limited
South 3rd
floor, Office Tower Changan Xingrong Xxxxxx
0
Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxxx
Xxxxx 100031
Attention:
Dongping Fei
Fax:
(00)00 0000 0000
Each Party making a communication
hereunder by facsimile shall promptly confirm by telephone to the person to whom
such communication was addressed each communication made by it by facsimile
pursuant hereto but the absence of such confirmation shall not affect the
validity of any such communication. A party may change or supplement the
addresses given above, or designate additional addresses, for purposes of this
Section 5.1 by
giving the other party written notice of the new address in the manner set forth
above.
Section
5.2 Waivers and Amendments;
Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived only by a
written instrument signed by the Parties or in the case of a waiver, by the
Party waiving compliance. No delay on the part of any Party in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof except as expressly provided herein. No waiver on the
part of any Party of any right, power or privilege nor any single or
partial exercise of any such right, power or privilege, shall preclude
any further exercise thereof or the exercise of any other such right, power
or privilege. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
Section
5.3 Governing Law; Arbitration.
(a) This
Agreement shall be governed by and construed under the laws of the State of New
York, without regard to the principles of conflicts of law thereof.
(b) Dispute
Resolution.
(i) Any
dispute, controversy or claim (each, a “Dispute”) arising out of or
relating to this Agreement, or the interpretation, breach, termination or
validity hereof, shall be resolved at the first instance through consultation
between the Parties to such Dispute. Such consultation shall begin
immediately after any Party has delivered written notice to any other Party to
the Dispute requesting such consultation.
(ii) If
the Dispute is not resolved within sixty (30) days following the date on which
such notice is given, the Dispute shall be submitted to arbitration upon the
request of any Party to the Dispute with notice to each other Party to the
Dispute (the “Arbitration
Notice”).
(iii) The
arbitration shall be conducted in Hong Kong and shall be administered by the
Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the
HKIAC Procedures for the Administration of International Arbitration in force at
the time of the commencement of the arbitration. There shall be three
(3) arbitrators. The claimants in the Dispute shall collectively
choose one arbitrator, and the respondents shall collectively choose one
arbitrator. The Secretary General of the HKIAC shall select the third
arbitrator, who shall be qualified to practice law in the State of New
York. If any of the members of the arbitral tribunal have not been
appointed within thirty (30) days after the Arbitration Notice is given, the
relevant appointment shall be made by the Secretary General of the
HKIAC.
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(iv) The
arbitration proceedings shall be conducted in English. The
arbitration tribunal shall apply the Arbitration Rules of the United Nations
Commission on International Trade Law, as in effect at the time of the
commencement of the arbitration. However, if such rules are in
conflict with the provisions of this Section 5.3(b),
including the provisions concerning the appointment of arbitrators, the
provisions of this Section 5.3(b) shall
prevail.
(v) Each
Party to the arbitration shall cooperate with each other Party to the
arbitration in making full disclosure of and providing complete access to all
information and documents requested by such other Party in connection with such
arbitration proceedings, subject only to any confidentiality obligations binding
on such Party.
(vi) The
arbitrators shall decide any Dispute submitted by the Parties to the arbitration
tribunal strictly in accordance with the substantive law of the State of New
York and shall not apply any other substantive law.
(vii) Any
Party to the Dispute shall be entitled to seek preliminary injunctive relief, if
possible, from any court of competent jurisdiction pending the constitution of
the arbitral tribunal.
(viii) During
the course of the arbitration tribunal’s adjudication of the Dispute, this
Agreement shall continue to be performed except with respect to the part in
dispute and under adjudication.
(ix) The
award of the arbitration tribunal shall be final and binding upon the Parties,
and the prevailing Party may apply to a court of competent jurisdiction for
enforcement of such award.
Section
5.4 Binding Effect; No
Assignment; No Third Party Beneficiaries.
Except as expressly provided herein, neither this Agreement, nor any
right hereunder, may be assigned by any Party without the written consent
of the other Parties. Any assignment or attempted assignment in
violation of the foregoing shall be void. This Agreement shall be
binding upon and inure solely to the benefit of the Parties hereto and
their permitted successors and assigns and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights
or remedies of any nature whatsoever under or by reason of this
Agreement.
Section
5.5 Entire Agreement.
This Agreement (including the Exhibits attached hereto) contains all
of the agreement among the Parties with respect to the transaction
contemplated hereby and supersede all prior agreements and understandings,
whether written or oral, between the Parties with respect thereto.
Notwithstanding the foregoing, in the event that the Big Boy
Representations Certificate is executed and delivered by Sellers, such
certificate shall be integrated into, and form a part of,
this Agreement.
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Section
5.6 Counterparts.
This Agreement may be executed by the Parties in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies
hereof each signed by at least one Party, but together signed by both of
the Parties.
Section
5.7 Headings. The
headings of the various articles and sections of this Agreement are inserted
merely for the purpose of convenience and do not expressly or by implication
limit, define or extend the specific terms of the section so
designated.
Section
5.8 Severability. If any
provisions of this Agreement shall be adjudicated to be illegal, invalid or
unenforceable in any action or proceeding whether in its entirety or in any
portion, then such provision shall be deemed amended, if possible, or deleted,
as the case may be, from the Agreement in order to render the remainder of the
Agreement and any provision thereof both valid and enforceable, and all other
provisions hereof shall be given effect separately therefrom and shall not be
affected thereby.
Section
5.9 Survival. All
representations, warranties, covenants and agreements of the parties shall
survive the consummation of the transactions contemplated by this
Agreement.
Section
5.10 Termination.
This Agreement shall terminate in its entirety and be of no further
force or effect with the exception of the provisions set forth in Section 5.3 hereof upon
the occurrence of any of the following:
(a) the
Share Purchase has not occurred on or before December 31, 2009;
or
(b) the
conditions to each Party’s obligation to close have not been satisfied or
waived on or prior to the Closing Date.
provided, however, that no such
termination shall relieve any Party of liability for its breach of this
Agreement.
Section
5.11 Definitions. As used
in this Agreement, the following terms shall have the meanings set forth
below:
(a) “Affiliate” or “affiliates”, as
applied to any Person, shall mean any other Person directly or indirectly
controlling, controlled by, or under common control with that Person. For
the purposes of this definition, “control” (including with correlative
meanings, the terms “controlling,” “controlled by” and “under common
control with”), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of that person, whether through the ownership of voting
securities or by contract or otherwise.
(b) “Beneficially own” and
“beneficial
ownership” have the meanings given to these terms in Rule 13d-3 of
the Rules and Regulations of the Securities and Exchange Commission under
the Exchange Act, as in effect on the date hereof.
(c) “Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks in
Beijing are authorized or required by law or executive order to
close.
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(d) “Big Boy
Representation
Certificate”
means a certificate, in the form attached hereto as Exhibit
A.
(e) “Governmental
Authority” means the government of any nation, state, city, locality or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
(f) “Law” shall mean any
statute, law, rule, regulation, judgment, order or decree of any state, country
or jurisdiction.
(g) “Lien” or “Liens” mean any
mortgage, deed of trust, pledge, hypothecation, assignment, encumbrance, voting
restriction (statutory or other), lien (statutory or other) or preference,
priority, right or other security interest or preferential arrangement of any
kind or nature whatsoever.
(h) “Person” means any
individual, firm, corporation, partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, limited
liability company, Governmental Authority or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
[Signature Page
Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Share Purchase Agreement to
be duly executed on the date first above written.
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Purchaser:
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Pypo
Digital Company Limited
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By:
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/s/
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Name:
Fei Dongping
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Title:
Director
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Sellers:
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Capital
Ally Investment Limited
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By:
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/s/
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Name:
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Title:
Director
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Arch
Digital Holdings Limited
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By:
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/s/
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Name:
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Title:
Director
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Signature Page
to Share Purchase Agreement
EXHIBIT
A
BIG
BOY REPRESENTATION CERTIFICATE
This
certificate is being delivered by the undersigned in connection with the SHARE
PURCHASE AGREEMENT (the “Purchase Agreement”), dated as of _____________, 2009,
by and among Pypo Digital Company Limited, a company organized under the laws of
the Cayman Islands, Capital Ally Investments Limited, a company organized under
the laws of the British Virgin Islands, and Arch Digital Holdings Limited, a
company organized under the laws of the British Virgin Islands. Capitalized
terms used, but not defined, herein shall have the meanings given to such terms
in the Purchase Agreement. This certificate, upon execution and delivery, shall
form a part of, and be integrated into, the Purchase Agreement.
1. Big Boy
Representation. Each of the undersigned Sellers acknowledges
that it is a sophisticated investor capable of assessing and assuming investment
risks with respect to securities, including securities such as the Shares, and
further acknowledges that Purchaser is entering into this Agreement with such
Seller in reliance on this acknowledgment and with such Seller’s understanding,
acknowledgment and agreement that Purchaser is privy to material non-public
information regarding Pypo China Holdings Limited and its subsidiaries
(collectively, the “Non-Public
Information”), which Non-Public Information may be material to a
reasonable investor, such as the undersigned Seller, when making investment
disposition decisions, including the decision to enter into the Purchase
Agreement, and such Seller’s decision to enter into the Purchase Agreement is
being made with full recognition and acknowledgment that Purchaser is privy to
the Non-Public Information, irrespective of whether such Non-Public Information
has been provided to such Seller. The undersigned Seller hereby waives any
claim, or potential claim, it has or may have against Purchaser relating to
Purchaser’s possession of Non-Public Information.
IN
WITNESS WHEREOF, this Big Boy Representations Certificate has been executed as
of this ___ day of ______________, 2009.
| Capital Ally Investment Limited | ||
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By:
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/s/
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Name:
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Title:
Director
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Arch
Digital Holdings Limited
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By:
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/s/
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Name:
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