Exhibit 10.31
EXECUTION COPY
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of October 15, 2004 ("this
Agreement"), by and among Xxxxxx Interactive Entertainment Limited, an exempted
company incorporated in the Cayman Islands ("Purchaser"), and SB Asia
Infrastructure Fund L.P., a Cayman Islands limited partnership, ("Seller")
(each, a "Party" and collectively, the "Parties").
WHEREAS, Seller owns, beneficially and of record, 26,583,748
ordinary shares, par value $0.01 (the "Ordinary Shares"), of Purchaser;
WHEREAS, the closing sale price of Purchaser's American
depository shares (ADSs) as quoted on the Nasdaq National Market on October 14,
2004 was US$29.96, which is equivalent to US$14.98 per ordinary share of the
Purchaser (the "Reference Trade Price").
WHEREAS, Purchaser and Seller, and certain additional
shareholders, are party to that certain Shareholders Agreement, dated as of
December 19, 2003, as amended, (the "Shareholders Agreement"), pursuant to which
Purchaser has granted certain registration rights to Seller;
WHEREAS, on October 15, 2004 Purchaser proposes to commence an
offering (the "Offering") to issue and sell up to $200,000,000 in principal
amount of zero-coupon senior convertible notes (the "Notes");
WHEREAS, in connection with the Offering, Purchaser has
granted the initial purchaser of the Notes an over-allotment option to purchase
up to an additional US$75,000,000 principal amount of Notes, from time to time,
for a period of up to 30 calendar days from October 15, 2004 (the "Optional
Sales") (the aggregate principal amount of Notes purchased in all such Optional
Sales, if any, is referred to herein as the "Optional Amount"); and
WHEREAS, Purchaser desires to acquire an amount of Ordinary
Shares beneficially owned by Seller, and Seller desires to sell an amount of
Ordinary Shares to Purchaser, all upon the terms and subject to the conditions
set forth in this Agreement.
NOW THEREFORE, in consideration of the above premises and
mutual agreements set forth in this Agreement and subject to the terms and
conditions stated herein, the Parties hereby 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"), Seller shall sell, transfer,
convey, assign and deliver to Purchaser (the "Share Purchase") all of its right,
title and interest in and to the Shares (as defined
below), free of all mortgages, pledges, security interests, liens, claims,
encumbrances or other restrictions ("Liens").
SECTION 1.2. Purchase Price for Shares.
(a) The purchase price for the Shares (the "Purchase
Price") shall equal the sum of (x) US$50,000,000 and (y) the Excess Amount (as
defined below);
(b) The Purchase Price shall be payable at the
Closing to Seller by wire transfer in immediately available funds, to an account
designated by Seller in writing at least two business days prior to the Closing.
SECTION 1.3. Number of Shares. The number of Ordinary Shares
to be delivered by Seller at Closing (the "Shares") shall be equal to:
(a) In the event that the Excess Amount is equal to
zero, the quotient obtained by dividing (i) the Purchase Price by (ii) the
product of (x) the Reference Trade Price and (y) 95%.
(b) In the event that the Excess Amount is greater
than zero, and less than or equal to US$15,000,000, the sum of (i) the quotient
obtained by dividing (x) US$50,000,000 by (y) the product of (1) the Reference
Trade Price and (2) 95% and (ii) the quotient obtained by dividing (x) the
Excess Amount by (y) the product of (1) the Reference Trade Price and (2) 94%.
(c) In the event that the Excess Amount is greater
than US$15,000,000, the quotient obtained by dividing (i) the Purchase Price by
(ii) the product of (x) the Reference Trade Price and (y) 94%.
SECTION 1.4. Closing. The Closing shall take place at the
offices of O'Melveny & Xxxxx XXX, Xxxxx Xxxxxx, 00X, 1515 Nanjing Road West,
Shanghai, at 2:00 p.m., Shanghai time, on the earlier of (i) November 14, 2004,
(ii) the date that is two business days after the closing date in relation to
which the initial purchaser's over-allotment option has been exercised in full,
and (iii) the date that is two business days after the date on which the initial
purchaser irrevocably waives and cancels its over-allotment option (such
cancellation to be evidenced by a writing), or at such other place, time or date
as may be mutually agreed upon in writing by the parties (the "Closing Date").
SECTION 1.5. Deliveries.
(a) At the Closing, Seller shall deliver, or shall cause to be
delivered, to Purchaser the following:
(i) Certificates evidencing the Shares duly endorsed
in blank or with stock powers duly executed in proper form for transfer;
(ii) The closing certificate required by Section
4.1(a); and
(iii) The Closing Representations and Covenants
Certificate, a form of which is attached hereto as Exhibit A.
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(b) At the Closing, Purchaser shall deliver, or shall cause to
be delivered, to Seller the following:
(i) The Purchase Price; and
(ii) The closing certificate required by Section
4.2(a).
ARTICLE II
COVENANTS
SECTION 2.1. Registration Rights. Notwithstanding anything to
the contrary contained within the Shareholders Agreement, it is hereby
acknowledged and agreed, and the Shareholders Agreement is hereby amended and
modified, as set forth below:
Upon and after such time as the amount of Ordinary Shares held
by SAIF, as a percentage of the total number of issued and outstanding Ordinary
Shares, is less than or equal to five-percent:
(a) the Purchaser may, from time to time, grant to
any Person, at its sole discretion (as to grant, extent, conditions and
withdrawal, among other things), the right to be included in a registration
pursuant to a Piggyback Registration (as such term is used in the Shareholders
Agreement) on terms pari passu with (but not senior to) the participation or
other rights of Seller in connection with a Piggyback Registration; and further
(b) in the event the Purchaser shall so agree,
Skyline Media Limited, an international business company organized and existing
under the laws of the British Virgin Islands, ("Skyline") shall be entitled to
rights to Registration (as such term is defined in the Shareholders Agreement)
of securities held by Skyline pari passu to such rights as granted to Seller
pursuant to the Shareholders Agreement.
The Parties shall, promptly upon request, execute, deliver and
file such agreements, amendments, undertakings, certificates, instruments and
documents as shall be reasonably necessary for the furtherance of the provisions
of this Section 2.1.
SECTION 2.2. Lock-up. Seller hereby agrees that, in the event
the Closing occurs, during the period from and including the Closing Date
through and including January 15, 2005, Seller shall not (except as contemplated
by this Agreement) offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise transfer, dispose of, or otherwise
reduce its economic risk in respect of any Ordinary Shares, American depository
receipts representing Ordinary Shares, or any other securities of the Purchaser,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Ordinary Shares or any
such securities. In addition, if requested by the initial purchaser of the
Notes, the Seller agrees to promptly execute and deliver a customary lock-up
agreement in connection with the Offering.
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SECTION 2.3. Confidentiality. Seller acknowledges that it and
its representatives may receive information about the Purchaser or its
Affiliates that is confidential or is material, non-public information
(together, "Confidential Information"), including information pertaining to the
transactions which are the subject hereof. Seller agrees, for itself and its
Affiliates, officers, employees and representatives, to hold such Confidential
Information strictly confidential and to not disclose it to any other Person.
Further, Seller, for itself and its representatives agrees that it will comply
with its obligations under United States securities laws which restrict any
person who has material, non-public information concerning an issuer from
purchasing or selling securities of such issuer (and options, warrants and
rights relating thereto) or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person (including, without limitation any representatives of such person) is
likely to purchase or sell such securities. Confidential Information shall not
include any information which at the time of disclosure or thereafter is
generally available to the public, other than as a result of a breach of
contract or duty known to the Seller, or such Affiliate, officer, employee or
representative, as applicable.
SECTION 2.4. Reasonable Best Efforts. The Parties shall use
reasonable best efforts to cause the fulfillment of all of the conditions to the
Parties' obligations to consummate the transactions contemplated by this
Agreement at or prior to the Closing.
SECTION 2.5. Further Assurances. In addition to the covenants
and agreements provided for herein, after the Closing, the Parties shall, and
shall cause their respective affiliates to, from time to time, at their own
expense, execute and deliver such other documents, instruments or agreements as
are necessary or advisable to carry out the transactions contemplated by this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Seller Representations and Warranties. Seller
hereby represents, warrants and covenants to Purchaser as follows:
(a) Seller. Seller is a limited partnership duly organized,
validly existing and in good standing under the respective laws of the
jurisdiction of its organization. Seller has all necessary partnership power and
authority to execute, deliver and perform this Agreement.
(b) Authorization The execution, delivery and performance of
this Agreement by Seller have been duly and validly authorized by Seller and by
all other necessary partnership action on the part of Seller. This Agreement
constitutes the legally valid and binding obligation of Seller, enforceable
against 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 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, the partnership
agreement or other constitutional documents of Seller or violate any applicable
law.
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(c) The Shares. Seller owns all of the Shares free and clear
of all Liens, except for restrictions of general applicability imposed by
federal and state securities laws (and contractual restrictions imposed by the
applicable shareholders agreement or any lock-up agreements). Seller agrees that
it will not create any Lien on the Shares. Seller represents and warrants that
(i) upon the purchase by Purchaser of the Shares and payment in full of the
Purchase Price therefor, Purchaser will acquire good and marketable title to the
Shares, free and clear of any Liens and (ii) the sale of the Shares will not
result in a default (subject to obtaining a satisfactory waiver under the
applicable lock-up agreement) under or breach of conflict with any agreement to
which Seller is a party or by which it or any of its assets is or result in the
violation of any law, rule or regulation applicable to Seller.
(d) Seller's Investment Sophistication. Seller (a) has the
requisite knowledge, sophistication and experience in order to fairly evaluate a
disposition of the Shares, 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 the Purchaser and its subsidiaries taken
as a whole to make an informed decision regarding the sale of the Shares
pursuant to this Agreement.
(e) Brokers and Finders. 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.
SECTION 3.2. Purchaser Representations and Warranties.
Purchaser hereby represents and warrants to Seller as follows:
(a) Purchaser. Purchaser is an exempted company incorporated
in the Cayman Islands, duly organized, validly existing and in good standing
under the respective laws of the jurisdiction of its incorporation. 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 board of
directors of 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, the articles and memorandum of association or
other fundamental documents of Purchaser or violate any applicable law.
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ARTICLE IV
CONDITIONS
SECTION 4.1. 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) The representations and warranties set forth in Section
3.1 hereof shall be true and correct as of the Closing Date and Seller shall
have delivered to Purchaser a certificate dated the Closing Date and signed by
Seller's authorized signatory to such effect.
(b) Seller shall have duly executed and delivered to Purchaser
the Closing Representations and Covenants Certificate.
(c) Seller 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) Seller shall have obtained a waiver, in form and substance
reasonably satisfactory to the Purchaser, of applicable lock-up provisions
relating to the Shares, including any such provision imposed pursuant to the
Shareholders Agreement.
(e) 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 entity, which are required for
or in connection with the execution and delivery by the Parties of this
Agreement and the consummation by the Parties of the Share Purchase contemplated
hereby shall have been obtained or made, in form and substance reasonably
satisfactory to the Purchaser, and shall be in full force and effect.
(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 entity 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 party unable to consummate the
transaction contemplated hereby. Consummation of the transactions contemplated
by this Agreement will not violate any U.S. federal, U.S. state, or foreign
securities laws.
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SECTION 4.2. Conditions Precedent to Seller's Obligations. The
obligations of Seller 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) The representations and warranties set forth in Section
3.2 hereof shall be true and correct as of the Closing Date and Purchaser shall
have delivered to Seller a certificate dated as of the Closing Date and signed
by an executive officer of Purchaser to such effect.
(b) 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.
(c) Seller shall have obtained a waiver, in form and substance
reasonably satisfactory to the Purchaser, of applicable lock-up provisions
relating to the Shares, including any such provision imposed pursuant to the
Shareholders Agreement.
(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 entity, which are required for
or in connection with the execution and delivery by the Parties of this
Agreement and the consummation by the Parties of the Share Purchase contemplated
hereby shall have been obtained or made, in form and substance reasonably
satisfactory to the Seller, 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 entity 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 party unable to consummate the
transaction contemplated hereby. Consummation of the transactions contemplated
by this Agreement will not violate any U.S. federal, U.S. state, or foreign
securities laws.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Notices. Any notice or other communication
required or permitted hereunder shall be in writing and shall be delivered
personally, or sent by facsimile transmission or sent by certified, registered
or express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, or sent by facsimile transmission or, if mailed, three (3)
business days after the date of deposit in the mail, by certified mail return
receipt requested (if also sent by facsimile if available at the office of the
recipient), as follows:
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If to Seller, to:
SB Asia Infrastructure Fund, L.P.
c/o SAIF Advisors Ltd.
Suite 2115-2118, Two Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xxxxxx Xxx and Xxxxxxx Xxx
Telecopier: 000-0000-0000
With a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
3007 Xxxxxxxxx Xxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xxxxxx Sun
Telecopier: 000-0000-0000
If to Purchaser, to:
Xxxxxx Interactive Entertainment Limited
Xx. 0 Xxxxxxxxxxx Xxxxxx Xxxxxxxx,
Xx. 000 Bibo Road, Zhangjiang,
Xxxxx-Xxxxxxxxxxx Xxxxxx, Xxxxxx Xxx Xxxxxxxx,
Xxxxxxxx, 000000, P.R.C
Attention: Xxxx Xxxxxxxxxx
Telecopier: 8621- 50805132
With copies to:
O'Melveny & Xxxxx LLP
Suite 1905, Tower Two
Lippo Centre
89 Queensway
Central, Hong Kong, S.A.R.
Attention Xxxxxxx Xxxxxxx
Telecopier: 852-2522-1760
Any Party, by notice given in accordance with this Section 5.1
to the other Parties, may designate another address or person for receipt of
notices hereunder.
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,
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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. This Agreement shall be governed
by and construed in accordance with the substantive and procedural laws of the
State of New York applicable to agreements made and to be performed entirely
within such State (without giving effect to any conflict of laws principles
which might require application of the law of a different jurisdiction).
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
Annexes and 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, among the Parties
with respect thereto. Notwithstanding the foregoing, in the event that the
Closing Representations and Covenants Certificate is executed and delivered by
the Parties, such certificate shall be integrated into, and form a part of, this
Agreement.
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 less than all, but together signed by all of the
Parties.
SECTION 5.7. Headings. The headings in the Agreement are for
reference only, shall not affect the interpretation of this Agreement.
SECTION 5.8. Severability. If any portion of this Agreement
shall be deemed unenforceable, the remaining portions hall be valid and
enforceable.
SECTION 5.9. Expenses. Each party hereto shall bear its own
fees and expenses incurred in connection with this Agreement (including transfer
fees and expenses and the legal, accounting and due diligence fees, costs and
expenses incurred by such party).
SECTION 5.10. Survival. All representations, warranties,
covenants and agreements of the parties shall survive the onsummation of the
transactions contemplated by this Agreement.
SECTION 5.11. 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 Sections 2.3 and 5.3) upon the occurrence of any of the
following:
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(a) the Share Purchase has not occurred on or before January
15, 2005; or
(b) the conditions to either Party's obligation to close have
not been satisfied or waived on or prior to the Closing Date.
SECTION 5.12. 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) "Closing Representations and Covenants Certificate" means
a certificate, in the form attached hereto as Exhibit A.
(d) "Excess Amount" means the amount, if any, by which the
Optional Amount exceeds US$50,000,000.
(e) "Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
* * * * *
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EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Purchase Agreement to be duly executed on the date first above written.
XXXXXX INTERACTIVE ENTERTAINMENT LIMITED
By: /s/ Tianqiao Chen
---------------------------------------------------
Name:
Title:
SB ASIA INFRASTRUCTURE FUND L.P.
By: /s/ Xxxxxx X. Xxx
---------------------------------------------------
Name:
Title:
EXHIBIT A
(CLOSING REPRESENTATIONS AND COVENANTS CERTIFICATE)
CLOSING REPRESENTATIONS AND COVENANTS CERTIFICATE
This certificate is being delivered by the undersigned in connection
with the Stock Purchase Agreement (the "Purchase Agreement"), dated as of
October 15, 2004, between Xxxxxx Interactive Entertainment Limited, an exempted
company incorporated in the Cayman Islands and SB Asia Infrastructure Fund L.P.,
a Cayman Islands limited partnership. 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. Access and Investigation. Seller hereby represents and warrants that
Purchaser has afforded Seller and its authorized employees, counsel,
accountants and other representatives, and such parties have availed
themselves of, (i) full and free access to Purchaser's books, records
and properties and (ii) the opportunity to interview any officer of
Purchaser regarding Purchaser's affairs. Seller has determined that it
has obtained adequate information to make an informed investment
decision regarding the Share Purchase. For purposes of clarification,
it is hereby acknowledged that the access provided by Purchaser may
have provided the Seller with material, non-public information about
the Purchaser.
2. Acknowledgement. Seller acknowledges that Purchaser may be required to
disclose to Seller material, non-public information in order to comply
with applicable law, and in the event any such information is made
available to Seller, Seller undertakes to provide written
acknowledgement of receipt thereof as a further condition to Closing.
3. Material Non-Public Information. Seller hereby covenants to Purchaser
that:
a. Restriction on Information. In the event that Seller has obtained
material, non-public information regarding Purchaser, Seller shall
maintain such information in strict confidence and not disclose it
to any Person. Any such information shall cease to be material,
non-public information when it becomes generally available to the
public.
b. Restriction on Trading. In the event that Seller is in possession
of material, non-public information regarding Purchaser, until
such time as such information has been disclosed to the public by
Purchaser, Seller shall refrain from any transactions in
securities of Purchaser. Seller shall not purchase (or otherwise
acquire beneficial ownership of, or sell or otherwise dispose of)
any Ordinary Shares or other securities of Purchaser if such
acquisition or disposition would violate U.S. federal, U.S. state,
or foreign securities laws, including pursuant to Regulation M,
Rule 10b-5 (each promulgated under the Securities and Exchange Act
of 1934, as amended) or otherwise.
* * * * *
IN WITNESS WHEREOF, this Closing Representations and Covenants
Certificate has been executed as of this ___ day of ___________, 2004.
SB ASIA INFRASTRUCTURE FUND L.P.
By:
-------------------------------------------------
Name:
Title:
