SHARE PURCHASE AGREEMENT KINGLAND OVERSEAS DEVELOPMENT INC. — and — GIGAMEDIA CHINA LIMITED July 6th, 2007
Exhibit 4.71
SPA for XXXXXXXX— Execution Copy
XXXXXXXX OVERSEAS DEVELOPMENT INC.
— and —
GIGAMEDIA CHINA LIMITED
July 6th, 2007
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This Share Purchase Agreement (this “Agreement”), dated as of July 6, 2007, is entered into
and made by and among the following parties:
XXXXXXXX OVERSEAS DEVELOPMENT INC., a private company limited by shares organized and existing
under the laws of the Cayman Islands (“Selling Shareholder”);
GIGAMEDIA CHINA LIMITED, a limited liability company organized and existing under the laws of
the British Virgin Islands (the “Purchaser”).
WHEREAS,
(i) T2CN Holding Limited (the “Company”) is a limited liability company duly organized and
existing under the laws of the British Virgin Islands,;
(ii) The Selling Shareholder totally hold 5,964,285 Ordinary Shares, and
(iii) The Selling Shareholder wishes to sell to the Purchaser, and the Purchaser wishes to
purchase from the Selling Shareholder, a total of 3,000,000 Ordinary Shares (the “Purchase
Shares”), subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1 DEFINITIONS
Unless otherwise defined in this Agreement or the November 25, 2006 Shareholders’ Agreement,
capitalized terms used herein shall have the following meanings:
“GIGAMEDIA” means GigaMedia Limited, a company listed on the NASDAQ and the parent company of
the Purchaser.
“MAA” means the Amended and Restated Memorandum and Articles of Association of the Company
dated on November 12, 2006.
“New Articles” means the Amended and Restated Memorandum and Articles of Association of the
Company, in form and substance to be agreed upon by the Company, the Purchaser, the Selling
Shareholder, other existing shareholders (together with the Selling Shareholder, the “Existing
Shareholders”) of the Company and certain other parties thereto.
“New Shareholders’ Agreement” means the Amended and Restated Shareholders’ Agreement of the
Company, among the Company, the Purchaser, other
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Existing Shareholders and certain other parties thereto, in form and substance to be agreed
upon by the parties thereto.
“November 25, 2006 Shareholders’ Agreement” means the Amended and Restated Shareholders’
Agreement of the Company, dated November 25, 2006, among the Company, the Existing Shareholders and
certain other parties thereto.
“Ordinary Shares” means the ordinary shares of the Company, par value US$0.01 per share.
SECTION 2 AGREEMENT TO PURCHASE AND SALE
2.1 Agreement to Purchase and Sale. Subject to the terms and conditions of this
Agreement, the Purchaser shall purchase for a price as ascertained in Section 2.2 hereof Purchase
Shares from Selling Shareholder;
2.2 Purchase Price. The total purchase price for the Selling Shareholder
(“Purchase Price”) shall be the purchase price per Purchase Share multiplying by the number of the
Purchase Shares to be sold by such Selling Shareholder, and the purchase price per Purchase Share
shall be US$0.85
2.3 Payment of the Purchase Price. The Purchase Price shall be paid by the
Purchaser in the following installment to the relevant accounts designated by the Selling
Shareholder in writing, which designation shall be instructed to the Purchaser fourteen (14) days
prior to the respective dates of payment specified herein:
Subject to the terms and conditions under this Agreement, the payment of US$ 2,550,000
(“Installment”) shall be paid at the Closing in cash.
SECTION 3 CLOSING; DELIVERY
3.1 Closing. The transfer of the Purchase Shares (the “Closing”) shall take
place at the offices of the Company, 12th Floor, Xingyuan Xxxxxxxxxx Xxxxx, Xx. 000
Xxxxxxx Xxxx, Xxxxxxxx 000000, Xxxxx, on or before September 10th, 2007 (the “Closing Date”), or at
such other place and time as the parties hereto may mutually agree. Upon the Closing, all the
rights and benefits attached to and in relation to the Purchase Shares (including but not limited
to the dividends attributable to the Selling Shareholder in respect of any and all Purchase Shares
if any) shall be transferred from the Selling Shareholder to the Purchaser.
3.2 Delivery at the Closing. At the Closing, the Selling Shareholder shall
deliver the following items to the Purchaser:
(i) The total Purchase Shares, together with duly issued share certificates of the total
Purchase Shares in the name of the Purchaser;
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(ii) A compliance certificate, signed by the director of Selling Shareholder certifying
that all the representations and warranties of the Selling Shareholder hereunder are true, correct
and complete, and all the conditions hereunder have been fulfilled;
At the Closing, the Purchaser shall pay the Installment to the Selling Shareholder against
receipt of all deliverables under items (i) through (ii) of Section 3.2 hereof. On the date of
receipt of the Installment, the Selling Shareholder shall issue a written receipt acknowledging
such receipt to the Purchaser.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER
The Selling Shareholder hereby represents and warrants to the Purchaser that the statements in
this Section 4 are all true, correct and complete as of the date hereof, as of the Closing Date
and, to the best of their knowledge, as of the payment date of the Second Installment:
4.1 Organization, Good Standing and Qualification. The Company is duly organized,
validly existing and in good standing under, and by virtue of, the laws of the British Virgin
Islands and has all requisite power and authority to own its properties and assets and to carry on
its business as now conducted and as proposed to be conducted. The Company is qualified to do
business and is in good standing in each jurisdiction where failure to be so qualified would have
an adverse effect on its financial condition, business, prospects or operations, or otherwise.
4.2 Valid Issuance of Purchase Shares. The Purchase Shares have been duly authorized
and validly issued and are fully paid and non-assessable and free and clear of any and all Liens.
The Selling Shareholder is the true and lawful owners of the Purchase Shares with and the full and
valid title to any and all Purchase Shares.
4.3 Due Authorization. All corporate actions by the Company and the Selling
Shareholder and, as applicable, its respective officers, directors and shareholders necessary for
the authorization, execution and delivery of, and the performance of any and all obligations of the
Company and the Selling Shareholder under this Agreement and all other agreements, instruments and
documents executed and delivered in connection with the transactions contemplated hereby (the
“Ancillary Agreements”), has been taken or will be taken prior to the Closing. This Agreement and
the Ancillary Agreements, when executed and delivered by the Selling Shareholder, are valid and
legally binding obligations of the Selling Shareholder, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting creditors’
rights generally and to general equitable principles.
4.4 No Conflicts. The execution and delivery of this Agreement and any and all
Ancillary Agreements by the Selling Shareholder and the performance of its
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obligations hereunder and thereunder will not result in (i) any conflict with the
memorandum and articles of association of the Selling Shareholder and the Company, (ii) any
breach or violation of, conflict with or default under any law, statute, regulation, judgment,
order, decree, license, permit or other governmental authorization or any mortgage, lease,
agreement, deed of trust, indenture or any other instrument to which any of the Selling Shareholder
or the Company is a party or by which the Selling Shareholder or the Company or their respective
properties or assets are bound, or (iii) the creation or imposition of any Liens against
the Company.
4.5 Disclosure. The Selling Shareholder have provided the Purchaser with all
information needed for the Purchaser to decide whether to purchase the Purchase Shares. There has
been no omission of any material facts or misrepresentation of any statement herein.
SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Selling Shareholder that the statements in
this Section 5 are all true, correct and complete as of the date hereof and as of the Closing Date:
5.1 Authorization. All corporate actions by the Purchaser and, as applicable, its
officers, directors and shareholders necessary for the authorization, execution and delivery of,
and the performance of any and all of its obligations under this Agreement and the Ancillary
Agreements has been taken or will be taken prior to the Closing. This Agreement and the Ancillary
Agreements, when executed and delivered by the Purchaser, constitute valid and legally binding
obligations of the Purchaser, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, reorganization and similar laws affecting creditors’ rights generally and
to general equitable principles.
5.2 No Conflicts; Consents and Approvals, etc. The execution and delivery of this
Agreement by the Purchaser and the performance of its obligations hereunder will not result in
(i) any conflict with the certificate of incorporation, by-laws or other constitutive
documents of the Purchaser, or (ii) any breach or violation of, conflict with or default
under any applicable law, statute, regulation, judgment, order, decree, license, permit or other
governmental authorization.
SECTION 6 ADDITIONAL COVENANTS
6.1 Filing of the New Articles. Each of the Selling Shareholder shall cause the New
Articles to be filed by the Company with the British Virgin Islands Registrar of Companies as soon
as practicable following the Closing.
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6.2 Operation in Ordinary Course. The Selling Shareholder undertake, jointly and
severally, that the Company will be operated in the ordinary course of business, consistent with
past practice, and as reasonably directed by the Purchaser, from the date hereof through the
Closing Date.
SECTION 7 CONDITIONS TO CLOSING BY PURCHASER
The obligations of the Purchaser to complete the Closing are subject to the fulfillment on or
prior to the Closing Date of the following conditions by each of the Selling Shareholder, any one
or more of which may be waived by the Purchaser in writing:
7.1 Representations and Warranties True and Correct. Any and all the representations
and warranties made by the Selling Shareholder in Section 4 hereof shall be true and correct and
complete when made, and shall be true and correct and complete as of the Closing Date and to the
best of their knowledge, as of the date of payment of the Second Installment with the same force
and effect as if they had been made on and as of such dates.
7.2 Performance of Obligations. The Selling Shareholder shall have performed and
complied with all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
7.3 New Articles. The New Articles shall have been duly adopted by the Company by all
necessary corporate actions of its Board of Directors and its shareholders.
7.4 Execution of New Shareholders’ Agreement. The New Shareholders’ Agreement in a
form and having a content satisfactory to the Purchaser shall have been duly executed and delivered
by all parties thereto (other than the Purchaser), and shall be in full force and effect.
7.5 No Material Adverse Change. Since the date hereof, there has been no material
adverse change in the Company, including but not limited to its assets, liabilities, financial
condition and operating results.
7.6 Selling Shareholder’ Deliverables. The Selling Shareholder shall have delivered
to the Purchaser the deliverables specified in Section 3.2 prior to or on the Closing Date.
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SECTION 8 TERMINATION
8.1 Termination of Agreement. This Agreement and the transactions contemplated by
this Agreement shall terminate:
(a) upon the mutual consent in writing of the parties hereto; or
(b) in the event of any breach of this Agreement which materially affects any other party
hereto, such breach is not remedied within thirty (30) days after written notice thereof is given
to the breaching party by the affected party; provided, however, that in the case of any breach by
any of the Selling Shareholder, only the Purchaser has the right to early terminate this Agreement.
8.2 Effect of Termination. In the event this Agreement is terminated pursuant to
Section 9.1, this Agreement shall become void and have no further effect, provided that no party
shall be relieved of any liability for a breach of this Agreement or for any misrepresentation
hereunder, nor shall such termination be deemed to constitute a waiver of any available remedy
(including specific performance and other injunctive relieves) for any such breach or
misrepresentation.
8.3 Survival. Sections 9, 10, 11.2 and 11.3 shall survive the expiration or early
termination of this Agreement.
SECTION 9 CONFIDENTIALITY
9.1 Confidential Information. For purpose of this Section 10, the term “Confidential
Information” shall mean the execution, delivery and performance of this Agreement and any and all
information delivered by a party hereto to any of the other party hereto in connection with the
transactions contemplated hereby.
9.2 Non-Disclosure.
(i) Without the prior written consent of the disclosing party, any party receiving the
Confidential Information (a) may not use or disclose to any person any Confidential Information;
and (b) shall make every effort to prevent the use or disclosure of Confidential Information. The
said provisions do not apply to (a) disclosure of Confidential Information to a director or
employee of the receiving party whose function requires him to have the Confidential Information,
(b) disclosure of Confidential Information to a professional adviser for the purpose of advising
the Purchaser and the Selling Shareholder, (c) Confidential Information which has become public
knowledge other than, directly or indirectly, through the receiving party’s breach of this Section
10.2, or (d) disclosure of Confidential Information required by law or regulation or any competent
authorities (and then if and to the extent practicable only after consulting and taking into
account the reasonable requirements of the Purchaser and the Selling Shareholder); provided,
however, that
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in the above situations (a) and (b) the persons receiving the Confidential Information have
undertaken the confidentiality obligations herein.
(ii) Without the prior written consents of the Purchaser and the Company, none of the
Selling Shareholder may disclose to any third party any confidential information about the Company
that it/he has received.
SECTION 10 MISCELLANEOUS
10.1 Binding Effect; Assignment. This Agreement shall be binding upon and shall be
enforceable by each party, its successors and permitted assigns. No party may assign any of its
rights or obligations hereunder without the prior written consent of the other parties.
10.2 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to the conflict of law rules thereof
to the extent such rules would require or permit the application of the laws of another
jurisdiction.
10.3 Dispute Resolution. Any dispute relating to or arising from the performance of
this Agreement shall be settled through consultations among the Parties, and if the parties hereto
cannot reach an agreement regarding such disputes within thirty (30) days of their occurrence, such
disputes shall be submitted to the Hong Kong International Arbitration Center for arbitration in
accordance with the UNCIRTAL Arbitration Rules then in force.
10.4 Costs and Expenses. Each of the parties hereto shall pay all its own costs and
expenses incident to its negotiation and entry into this Agreement and any other related agreements
or instruments contemplated hereunder or thereunder and to its performance of and compliance with
all agreements and conditions contained herein or therein on its part to be performed or complied
with, including the fees, expenses and disbursements of any counsel and/or accountants that it may
have retained.
10.5 Notices. All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing and delivered in person,
by courier or by facsimile (along with a copy by certified or registered mail) to the following
addresses:
| (a) | If to the Selling Shareholder, | ||||
| to: | |||||
| XXXXXXXX OVERSEAS DEVELOPMENT INC. | |||||
| Address: 12th Floor, Xingyuan Xxxxxxxxxx Xxxxx, Xx. 000 Xxxxxxx Xxxx, Xxxxxxxx 000000, Xxxxx | |||||
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| Facsimile: | 00-00-0000-0000 | ||||
| Telephone: | 00-00-0000-0000 | ||||
| Attention: | Mr. Jun-Xxx Xxxx | ||||
| (d) | If to the Purchaser, to: | ||||
| GIGAMEDIA CHINA LIMITED | |||||
| Address: 00xx Xxxxx, 000 Xxxxxx Xxxxx Xxxx, Xxxxxx 00000, Xxxxxx R.O.C. | |||||
| Facsimile: 000-0-0000-0000 | |||||
| Telephone:000-0-0000-0000 | |||||
| Attention: Xx. Xxxxxxxx Xxxxx, General Counsel | |||||
or, in each case, at such other address as may be specified in writing to the other parties in
accordance with the requirements of this Section 10.5. All such notices, requests, demands,
waivers and other communications shall be deemed to have been received (x) if by personal
delivery or courier, on the day delivered, or (y) if by facsimile, (A) if during
business hours on a Business Day, on the day on which such facsimile was sent, or (B)
otherwise on the Business Day immediately following the day on which such facsimile was sent,
provided that a copy is also sent by certified or registered mail.
10.6 Counterparts. This Agreement may be executed in counterparts and by different
parties hereto on separate copies or counterparts and which taken together shall constitute one and
the same instrument. The facsimile transmissions of any executed original document (including
without limitation, any page of an original document on which an original signature appears) and/or
retransmission of any such facsimile transmission shall be deemed to be the same as the delivery of
an executed original. At the request of any party hereto, the other parties hereto shall confirm
facsimile transmissions by executing duplicate original documents and delivering the same to the
requesting party or parties.
[SIGNATURE PAGE FOLLOWS]
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(Signature Page)
IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives to
execute this Agreement as of the date first written above.
| XXXXXXXX OVERSEAS DEVELOPMENT INC. |
||||
| By: | /s/ Jun-Xxx Xxxx | |||
| Name: | Jun-Xxx Xxxx | |||
| Title: | Director | |||
| GIGAMEDIA CHINA LIMITED |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | CEO | |||
