AMENDED AND RESTATED NON-COMPETE AND NON-SOLICITATION AGREEMENT
Exhibit 10.07
AMENDED
AND RESTATED NON-COMPETE AND NON-SOLICITATION AGREEMENT
This
Amended and Restated Non-compete and Non-soliciation Agreement (this “Agreement”) is
entered into as of September 10, 2009 by and between Xxxxxx Interactive Entertainment Limited, a
company limited by shares organized and validly existing under the laws of the Cayman Islands
(“Xxxxxx”), and Xxxxxx Games Limited, a company limited by shares organized and validly existing
under the laws of the Cayman Islands and a wholly-owned Subsidiary of Xxxxxx (“SDG”).
W I T N E S S E T H
WHEREAS, Xxxxxx and SDG entered into a Master Separation Agreement dated as of July 1, 2008
(the “Separation Agreement”) providing for the contribution by Xxxxxx of certain of its assets to
SDG and related matters;
WHEREAS, in connection with the transactions contemplated by the Separation Agreement, Xxxxxx
and SDG entered into a Non-Compete and Non-Solicitation Agreement dated as of July 1, 2008, as
amended as of May 29, 2009 (the “Existing Agreement”); and
WHEREAS, Xxxxxx and SDG intend to amend and restate the Existing Agreement in its entirely to
read in full as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Xxxxxx and SDG, for themselves, their successors and permitted assigns, hereby
agree as follows:
Section 1. Definitions. Each capitalized term used herein but not defined herein shall have
the meaning ascribed to it in the Separation Agreement.
(a) "Games Business” means the sourcing, development, operation and licensing of Games, and
related Intellectual Property Rights and activities incidental to the foregoing.
(b) "Games” means (i) massively multi-player online role-playing games and (ii) advanced
casual online games, in each case accessed by end users through PC client and/or browser client,
and in each case not including any online chess and board game community, online music community,
online e-sports game community and other virtual community, including virtual community that
contains certain online game style elements but such elements do not constitute the core business
model of such community.
Section 2.
Non-compete by Xxxxxx. From and after the Separation Date until the fifth
anniversary of the Separation Date (the “Non-Competition Period”), Xxxxxx shall not, and shall
cause each other member of the Xxxxxx Group not to, directly or indirectly, as a principal or for
its own account or jointly with others, or as a shareholder or equity owner in any Person (other
than members of the SDG Group), engage in the Games Business anywhere in the world. For the
avoidance of doubt, neither (i) operation of any PC game network platform or online service
platform, including but not limited to providing sales, distribution, billing, payment and/or
customer relationship management services to providers of Games Business nor (ii) acquisition of
any equity interests in any diversified company having not more than 25% of its gross revenues
(based on its latest annual audited financial statements) attributable to the Games Business will
be considered engaging in the Games Business for the purposes of this Agreement.
Section 3. Acquisition of Additional Games Interests. (a) If any member of the Xxxxxx Group
receives a proposal offering any member of the Xxxxxx Group an opportunity (each an “Investment
Opportunity”) to acquire or invest in any Third Party engaging in the Games Business other than any
acquisition or investment permitted by Section 2, Xxxxxx shall use its reasonable best efforts to
provide the SDG Group with the initial opportunity to pursue such Investment Opportunity. If the
SDG Group declines to pursue such Investment Opportunity, Xxxxxx shall have the opportunity to
pursue such Investment Opportunity, provided that Shanda’s equity interest in such Third Party
shall not exceed 50%.
(b) If Xxxxxx or any other member of the Xxxxxx Group (the “Seller”), after having complied
with Section 3(a) and invested in any Third Party engaging in the Games Business (the “Acquired
Games Interests”), intends to transfer, sell or otherwise dispose of a portion or all of such
Acquired Games Interests (the “Offered Interests”) to any Third Party, Xxxxxx shall promptly
deliver a written notice (the “Offer Notice”) to SDG that the Seller desires to dispose of such
Offered Interests and that sets forth the detailed information of such Offered Interests, the price
that such member proposes to be paid for such Offered Interests (the “Offer Price”), and any other
material terms sought by such member. The giving of an Offer Notice to SDG shall constitute an
offer (the “Offer”) by such Seller to sell the Offered Interests to SDG or any other member(s) of
SDG designated by SDG for at the Offer Price and on the other terms set forth in the Offer Notice.
SDG shall have a 30-day period (the “Offer Period”) in which to accept, or cause any such
designated member to accept, such Offer by giving a notice of acceptance to such Seller prior to
the expiration of such Order Period. If SDG fails to notify the Seller prior to the expiration of
the Offer Period, it shall be deemed to have declined such Offer. If SDG declines (or is deemed to
decline) such Offer, the Seller shall have the right to effect a disposition of the Offer Interests
on substantially the same or more favorable (as
to the Seller) terms and conditions as were set forth in the Offer Notice at a price not less
than the Offer Price.
Section 4. Non-Solicitation by Xxxxxx. From and after the Separation Date until the fifth
anniversary of the Separation Date, Xxxxxx shall not, and shall not permit any other member of the
Xxxxxx Group to:
(a) solicit any customer, supplier or any other Third Party having any business relationship
with any member of the SDG Group to cease doing business with or alter its business relationship
with such member; or
(b) induce any employee of any member of the SDG Group to terminate his or her employment with
such member or to enter into any employment or other business relationship with a Person other than
a member of the SDG Group; provided that this clause (b) shall not prevent any member of the Xxxxxx
Group from making generalized employment searches, by advertisements or by engaging firms to
conduct searches which are not focused on employees of members of the SDG Group.
Section 5.
Extension of Non-compete. In the event that Xxxxxx or any other member of the
Xxxxxx Group shall be in violation of the aforementioned restrictive covenants, then the time
limitation of such restrictive covenants shall be extended for the period of time during which such
breach or breaches have occurred and are continuing.
Section 6. Severability. If any provision contained in this Agreement shall for any reason
be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the validity of any other provisions contained in this Agreement,
and the parties shall substitute for the invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid provision. Without limiting the
generality of the foregoing, if any provision contained in this Agreement shall be held to cover a
geographic area or to be for a length of time which is not permitted by Applicable Law, or in any
way construed to be too broad or to any extent invalid, such provision shall be deemed narrowed to
provide for the maximum enforceable geographic area, time period and the broadest term permitted by
Applicable Law and shall be enforced as so narrowed.
Section 7. Specific Performance. The parties hereto acknowledge and agree that in the event
of any breach of this Agreement, the parties would be irreparably harmed and could not be made
whole by monetary damages. Each party hereto accordingly agrees (i) not to assert by way of
defense or otherwise that a remedy at law would be adequate, and (ii) that, in addition to any
other
remedy to which it may be entitled, that the remedy of specific performance of this Agreement
is appropriate in any action in court.
Section 8. Miscellaneous. The provisions of Article 9 of the Separation Agreement are
hereby incorporated by reference into this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
| XXXXXX INTERACTIVE ENTERTAINMENT LIMITED |
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| By: | /s/ Tianqiao Chen | |||
| Name: | Tianqiao Chen | |||
| Title: | CEO and Chairman of the Board of Directors | |||
| XXXXXX GAMES LIMITED |
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| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx Xxx | |||
| Title: | Chairman of the Board of Directors | |||
