SHARE PURCHASE AGREEMENT BY AND AMONG THE9 LIMITED AND _________ (the “Purchaser”)
Exhibit 10.13
SHARE PURCHASE AGREEMENT
BY AND AMONG
THE9 LIMITED
AND
_________ (the “Purchaser”)
________, 2021
TABLE OF CONTENTS
Page
Article I Definitions | 1 | |
Section 1.01 | Definitions | 1 |
Section 1.02 | Definitional and Interpretative Provisions | 6 |
Article II Description of the Transaction | 7 | |
Section 2.01 | Pre-Closing and Closing; Purchase and Sale of Subject Shares | 7 |
Section 2.02 | Closing Deliveries and Conditions | 7 |
Article III Representations and Warranties of Seller | 8 | |
Section 3.01 | Organization and Good Standing of Seller | 8 |
Section 3.02 | Authorization; Enforceable Agreement | 8 |
Section 3.03 | Non-contravention | 9 |
Section 3.04 | Governmental Consents | 9 |
Section 3.05 | Valid Issuances | 9 |
Article IV Representations and Warranties of Purchaser | 9 | |
Section 4.01 | Organization, Good Standing and Qualification | 10 |
Section 4.02 | Authorization; Enforceable Agreement | 10 |
Section 4.03 | Non-contravention | 10 |
Section 4.04 | Free Title | 10 |
Section 4.05 | Intellectual Property | 10 |
Section 4.06 | Status of Purchaser | 10 |
Article V Covenants and Additional Agreements of the Parties | 12 | |
Section 5.01 | Conduct of Purchaser | 12 |
Section 5.02 | Defected Bitcoin Mining Equipment. | 12 |
Section 5.03 | Notice of Certain Events. | 12 |
Section 5.04 | Commercially Reasonable Efforts | 13 |
Section 5.05 | Compliance with Laws | 13 |
Section 5.06 | Public Disclosure | 14 |
Section 5.07 | Confidentiality | 14 |
Section 5.08 | Lock-up | 14 |
Article VI Conditions to Pre-closing and Closing | 15 | |
Section 6.01 | Conditions to the Obligations of Each Party | 15 |
Section 6.02 | Conditions to the Obligations of Seller | 15 |
Section 6.03 | Conditions to the Obligations of Purchaser | 16 |
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Article VII Indemnification | 17 | |
Section 7.01 | Survival of Representations and Warranties | 17 |
Section 7.02 | Indemnification by Seller. | 17 |
Section 7.03 | Limits on Indemnification by | 18 |
Section 7.04 | Indemnification by Purchaser | 18 |
Section 7.05 | Limits on Indemnification by Purchaser | 18 |
Section 7.06 | Third-Party Claims | 19 |
Section 7.07 | Exclusive Remedy | 20 |
Article VIII Termination | 20 | |
Section 8.01 | Termination | 20 |
Section 8.02 | Effect of Termination | 20 |
Article IX Miscellaneous | 21 | |
Section 9.01 | Notices | 21 |
Section 9.02 | Specific Performance | 21 |
Section 9.03 | Amendments and Waivers | 21 |
Section 9.04 | Fees and Expenses | 21 |
Section 9.05 | Binding Effect; Benefit; Assignment | 22 |
Section 9.06 | Governing Law | 22 |
Section 9.07 | Consultation | 22 |
Section 9.08 | Arbitration | 22 |
Section 9.09 | Counterparts; Effectiveness | 23 |
Section 9.10 | Entire Agreement | 23 |
Section 9.11 | Severability | 23 |
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THIS SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of _________, 2021, is entered into by and among:
a) | The9 Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Seller” or “The9”); |
b) | _____________ (the “Purchaser”). |
The Seller and Purchaser are together referred to herein as the “Parties”, and each of them, a “Party”.
WHEREAS, as of the date hereof, The9 directly owns 100% of the share capital of The9 Sub;
AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) As used in this Agreement, the following terms have the following meanings:
“6-K Filing” has the meaning set forth in Section 5.07.
“Action” means any charge, claim, action, complaint, petition, inquiry, investigation, appeal, suit, litigation, grievance or other proceeding, whether administrative, civil, regulatory or criminal, whether at law or in equity, or otherwise under any applicable Law, and whether or not before any arbitrator or Governmental Authority.
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“Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, shall mean the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by Contract or otherwise.
“Arbitration Board” has the meaning set forth in Section 9.08(a).
“Bitcoin Mining Equipment” means equipment which is listed in the Exhibit A to this Agreement.
“Board” means the board of directors of the Seller or Purchaser, as the case may be.
“Business Day” means any day that is not a Saturday, a Sunday, legal holiday or other day on which banks are required or authorized by Law to be closed in the PRC, the Cayman Islands, New York or Hong Kong.
“Class A Shares” means Class A ordinary shares of The9, par value US$0.01 each.
“Closing” shall have the meaning set forth in Section 2.01(b).
“Closing Date” shall have the meaning set forth in Section 2.01(c).
“Code” means the United States Internal Revenue Code of 1986.
“Consent” means any approval, consent, ratification, permission, waiver or authorization (including any Permit).
“Constitutional Documents” means, with respect to a particular legal entity, the articles of incorporation, certificate of incorporation, formation or registration (including, if applicable, certificates of change of name), memorandum of association, articles of association, bylaws, articles of organization, limited liability company agreement, trust deed, trust instrument, operating agreement, joint venture agreement, business license, or similar or other constitutive, governing, or charter documents, or equivalent documents, of such entity.
“Contract” means, as to any Person, a contract, agreement, indenture, note, bond, loan, instrument, lease, mortgage, franchise, license, commitment, purchase order, and other legally binding arrangement, whether written or oral, including any and all amendments, modifications and supplements thereto.
“Damages” include any loss, damage, injury, liability, claim, demand, settlement, judgment, award, fine, penalty, Tax, fee (including reasonable attorneys’ fees), charge, cost (including costs of investigation) or expense of any nature actually suffered or incurred by the claiming Person(s).
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“Depositary” means The Bank of New York Mellon, the ADS depositary of The9.
“Dispute” has the meaning set forth in Section 9.07.
“Encumbrance” means any security interests, mortgages, liens, pledges, charges, reservations, restrictions, rights of way, options, rights of first refusal, community property interests, equitable interests, conditional sale or other title retention agreements, any agreement to provide any of the foregoing and all other encumbrances, whether or not relating to the extension of credit or the borrowing of money, whether imposed by contract, Law, equity or otherwise.
“Equity Securities” means, with respect to a Person, any and all shares of capital stock, membership interests, units, profits interests, ownership interests, equity interests, registered capital, and other equity securities of such Person, and any right, warrant, option, call, commitment, conversion privilege, preemptive right or other right to acquire any of the foregoing, or security convertible into, exchangeable or exercisable for any of the foregoing, or any Contract providing for the acquisition of any of the foregoing.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Governmental Authority” means any government of any nation, federation, province or state or any other political subdivision thereof, any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of any country, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization.
“Governmental Order” means any order, ruling, decision, verdict, decree, writ, subpoena, mandate, command, directive, consent, approval, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental Authority.
“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iii) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (iv) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness, and (v) all indebtedness referred to in clauses (i) through (iv) above of any other Person secured by any Encumbrance upon or in any property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness.
“Indemnified Party” has the meaning set forth in Section 7.06.
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“Independent Third Party” means, with respect to Seller, any Person who is not an Affiliate of Seller.
“Information” has the meaning set forth in Section 5.08.
“Law” or “Laws” means any and all provisions of any applicable constitution, treaty, statute, law, regulation, ordinance, code, rule, or rule of common law, any governmental approval, concession, grant, franchise, license, agreement, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority, in each case as amended, and any and all applicable Governmental Orders.
“Liability” means any direct or indirect liability, Indebtedness, claim, loss, damage, deficiency, obligation or responsibility, fixed or unfixed, liquidated or unliquidated, secured or unsecured, accrued, absolute or contingent.
“Lock-up Period” has the meaning set forth in Section 5.09.
“Loss” has the meaning set forth in Section 7.02.
“Permit” means any consent, approval, authorization, release, waiver, permit, grant, franchise, concession, agreement, license, exemption or order of, registration or record filing, operating license, qualifications, ratification, certificate, declaration or filing with, or report or notice to, or other form of permission to engage in a specific activity issued by, any Person, including any Governmental Authority.
“Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.
“PRC” or “China” means the People’s Republic of China excluding, for the purposes of this Agreement only, Hong Kong, Macau and Taiwan.
“Proceeding” means any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel.
“Purchaser In-Kind Contribution” has the meaning set forth in Section 2.01.
“Purchaser Fundamental Reps” means the representations and warranties of Purchaser contained in Section 4.01 and Section 4.02.
“Purchaser Group Company” means, Purchaser or any of its Subsidiaries.
“Purchaser Indemnified Party” has the meaning set forth in Section 7.04.
“Purchaser Material Adverse Effect” means any change or development that is or would reasonably be expected to be materially adverse to the business, assets, liabilities, operations or financial condition of Purchaser Group Companies, taken as a whole; provided, however, that no event, change, development or state of facts relating to the economy in general or resulting from industry-wide developments affecting companies in similar businesses (but only to the extent such changes or developments do not, individually or in the aggregate, have a disproportionate impact on any Purchaser Group Company relative to other Persons in similar businesses) shall be deemed in themselves, to constitute a Purchaser Material Adverse Effect.
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“Representatives” means a Person’s officers, directors, employees, agents, attorneys, accountants, advisors and other authorized representatives.
“Rules” has the meaning set forth in Section 9.08(a).
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Filings” means all registration statements, proxy statements and other statements, reports, schedules, forms and other documents required to be filed or furnished by the Company with the SEC pursuant to the Exchange Act and the Securities Act and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein, in each case, filed or furnished with the SEC.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Seller Fundamental Reps” means the representations and warranties of Seller contained in Section 3.01 and Section 3.02.
“Seller Indemnified Party” has the meaning set forth in Section 7.02.
“Seller Material Adverse Effect” means any change or development that is or would reasonably be expected to be materially adverse to the business, assets, liabilities, operations or financial condition of Seller, taken as a whole; provided, however, that no event, change, development or state of facts relating to the economy in general or resulting from industry-wide developments affecting companies in similar businesses (but only to the extent such changes or developments do not, individually or in the aggregate, have a disproportionate impact on any Seller relative to other Persons in similar businesses) shall be deemed in themselves, to constitute a Seller Material Adverse Effect.
“Subject Share” or “Subject Shares” has the meaning set forth in Section 2.01(a).
“Tax” or “Taxes” means (i) in the PRC: (a) any national, provincial, municipal, or local taxes, charges, fees, levies, or other assessments, including all net income (including enterprise income tax and individual income withholding tax), turnover (including value-added tax, business tax, and consumption tax), resource (including urban and township land use tax), special purpose (including land value-added tax, urban maintenance and construction tax, and additional education fees), property (including urban real estate tax and land use fees), documentation (including stamp duty and deed tax), filing, recording, social insurance (including pension, medical, unemployment, housing, and other social insurance withholding), tariffs (including import duty and import value-added tax), and estimated and provisional taxes, charges, fees, levies, or other assessments, imposed in all cases by a Governmental Authority, (b) all interest, penalties (administrative, civil or criminal), or additional amounts imposed by any Governmental Authority in connection with any item described in clause (a) above, and (c) any form of transferee liability imposed by any Governmental Authority in connection with any item described in clauses (a) and (b) above and (ii) in any jurisdiction other than the PRC: all similar liabilities as described in clause (i)(a) and (i)(b) above.
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“The9 Sub” means NBTC Limited, a wholly-owned subsidiary of The9.
“Third-Party Claim” has the meaning set forth in Section 7.06.
“US$” or “USD” shall mean U.S. dollars, the lawful currency of the United States of America.
Section 1.02 Definitional and Interpretative Provisions.
(a) When a reference is made in this Agreement to an Article or Section, such reference is to an Article or Section of this Agreement unless otherwise specified.
(b) The words “hereof,” “herein,” “hereby” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(c) The headings and sub-headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.
(d) Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.
(e) Whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation.”
(f) The use of “or” is not intended to be exclusive unless expressly indicated otherwise.
(g) References to a Person are also to its permitted successors and assigns.
(h) A reference to any legislation or to any provision of any legislation shall include any modification, amendment, re-enactment thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments issued or related to such legislation.
(i) The Parties have each participated in the negotiation and drafting of this Agreement and if any ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts thereof.
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ARTICLE II
DESCRIPTION OF THE TRANSACTION
Section 2.01 Pre-Closing and Closing; Purchase and Sale of Subject Shares.
(a) Upon the terms and subject to the conditions of this Agreement, The9 agrees to sell to the Purchaser ________ Class A Shares (the “Subject Shares” and each, a “Subject Share”), and in exchange therefor, the Purchaser agrees to transfer and assign to the Seller all of the Purchaser’s right, title and interest in, to and under (i) the Bitcoin Mining Equipment and (ii) all manufacturer warranties, insurance policies, if any, in effect for the Bitcoin Mining Equipment, in favor of Seller, free and clear of all Encumbrances and suitable for intended use (the “Purchaser In-Kind Contribution”). The9 shall cause The9 Sub or its subsidiaries, including but not limited to, Niulian Technology (Shaoxing) Co., Ltd., as the designated entity of The9, to receive the Purchaser In-Kind Contribution at Closing.
(b) Upon closing (the “Closing”), subject to satisfaction or waiver of each of the conditions set forth in Article VI required by this Agreement to be satisfied at Closing, Purchaser shall deliver the Purchaser In-Kind Contribution to the Seller, and the Seller shall deliver the Subject Shares to the Purchaser.
(c) The consummation of the transactions contemplated by this Agreement at Closing shall take place electronically. The Closing shall take place at a time and on a date to be specified by the Parties, which shall be no later than the third Business Day after the date on which each of the conditions set forth in Article VI required by this Agreement to be satisfied at Closing is satisfied or waived (other than those conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver thereof at the Closing), or at such other time, date and location as the Parties agree in writing. The date on which Closing actually takes place is referred to in this Agreement as the “Closing Date”.
Section 2.02 Closing Deliveries and Conditions.
(i) a draft of the register of members of The9 evidencing, and a draft of share certificate representing, all of the Subject Shares registered in the name of Purchaser (with a copy of the updated register of members of The9 and original share certificate delivered to the Purchaser within 14 Business Days after the Closing); and
(ii) a certificate, executed by the secretary or a duly authorized director or officer of the Seller, dated as of the Closing Date, certifying (A) a copy of the resolutions of the Seller’s Board authorizing the execution, delivery and performance of this Agreement; (B) the incumbency and signatures of the Seller’s directors or officers executing this Agreement; and (C) that the conditions set forth in Section 6.01 (with respect to itself) and Section 6.02 have been duly satisfied, which shall be in full force and effect.
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(i) to the extent that the Purchaser is a corporation, a certificate of the secretary or a duly authorized director or officer of Purchaser, dated as of the Closing Date, certifying (A) a copy of the resolutions of Purchaser’s Board authorizing the execution, delivery and performance of this Agreement, including the sale and delivery of the Purchaser In-Kind Contribution in accordance with this Agreement; and (B) that the conditions set forth in Section 6.01 (with respect to itself) and Section 6.03 have been duly satisfied;
(ii) a xxxx of transfer substantially in the form attached hereto as Exhibit B (the “Xxxx of Transfer”) to transfer and vest in the entity designated by The9 good and marketable title to the Bitcoin Mining Equipment, free and clear of all liens and encumbrances; and
(iii) at the discretion of Seller, either deliver physical Bitcoin Mining Equipment to the warehouse designated by Seller, or make it available for immediate pick-up by Seller at Purchaser’s location, which location shall be notified in writing to Seller in advance;
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Subject to Section 9.05, except as otherwise disclosed in any SEC Filings, the Seller represents and warrants to the Purchaser that each of the representations and warranties contained in this Article III is true, complete and not misleading as of the date of this Agreement, and each of such representations and warranties shall be true, complete and not misleading on and as of the Closing Date, with the same effect as if made on and as of the Closing Date, as applicable (except for such representations and warranties that are made as of a specified date, which shall be true, complete and not misleading as of such date):
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Seller that each of the representations and warranties contained in this Article IV is true, complete and not misleading as of the date of this Agreement, and each of such representations and warranties shall be true, complete and not misleading on and as of the Closing Date, with the same effect as if made on and as of the Closing Date (except for such representations and warranties that are made as of a specified date, which shall be true, complete and not misleading as of such date):
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Section 4.07 Status of the Purchaser.
(a) The Purchaser is (i) not a “U.S. person” and is located outside the United States, as such terms are defined in Rule 902 of Regulation S under the Securities Act; (ii) aware that the issuance and sale of the Subject Shares is being made in reliance on Rule 903 promulgated under the Securities Act, and (iii) acquiring the Subject Shares for its own account and not with a view to, or the intention of, or for sale in connection with, any distribution thereof in violation of applicable securities Laws.
(b) The Purchaser understands and agrees that the Subject Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the Subject Shares will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to an exemption from registration under the Securities Act provided by Rule 904 thereunder (if available), (iv) pursuant to an effective registration statement under the Securities Act or (v) to Seller, in each of cases (i) through (v) in accordance with any applicable state and federal securities Laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(c) In addition to any other legend that may be required, each certificate for the Subject Shares to be issued to Purchaser pursuant to and subject to the terms and conditions of this Agreement shall bear a legend in substantially the following form (it being agreed that if the Subject Shares are not certificated, other appropriate restrictions shall be implemented to give effect to the following):
“THE SALE, TRANSFER, ASSIGNMENT, PLEDGE OR ENCUMBRANCE OR ANY OTHER ALIENATION OF THE SHARES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF THE HOLDERS OF SUCH SHARES ARE SUBJECT TO THE TERMS AND CONDITIONS OF A SHARE PURCHASE AGREEMENT DATED _________, 2021, AS AMENDED FROM TIME TO TIME. A COPY OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE REGISTERED HOLDER OF THIS CERTIFICATE TO THE COMPANY.”
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED: (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL, IN FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND ANY OTHER APPLICABLE SECURITIES LAWS; OR (II) UNLESS THE SECURITIES HAVE BEEN SOLD PURSUANT TO RULE 144 OR ANOTHER AVAILABLE EXEMPTION UNDER THE SECURITIES ACT.”
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(d) The Purchaser understands that Seller will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
ARTICLE V
COVENANTS AND ADDITIONAL AGREEMENTS OF THE PARTIES
Section 5.01 Conduct of Purchaser. From the date of this Agreement until the Closing, the Purchaser shall, and shall cause each Purchaser Group Company, if applicable, to grant Seller free access to the Bitcoin Mining Equipment for examination and evaluation. Seller, at its own discretion, may appoint a third-party valuation company to conduct examination and assessment of a fair market price of the Bitcoin Mining Equipment. The Purchaser shall not withhold its cooperation and shall grant access and render assistance to such third party to conduct examination and valuation. If valuation report results submitted by third-party valuation company(i) shows that the fair market price is lower than the agreed value consideration under this Agreement or (ii) determines any defects in the Bitcoin Mining Equipment, the Seller shall have a right, at its own discretion, to do either or all of the following: (a) reject defected portion of the Bitcoin Mining Equipment, (b) reduce amount of the Subject Shares proportionally, or (c) adjust total amount of the Subject Shares to the fair market price of the Bitcoin Mining Equipment.
Upon the execution of this Agreement and before the Closing (the “Retention Period”), the Purchaser shall maintain the Bitcoin Mining Equipment at his own expense and shall take all measures, in order that the Seller’s claim of ownership contemplated in this Agreement is neither compromised nor nullified. For the avoidance of doubt, any income generated from the use of the Bitcoin Mining Equipment during the Retention Period shall belong to the Seller as a beneficial owner of such Bitcoin Mining Equipment.
Section 5.02 In case the Seller decides to store Bitcoin Mining Equipment in the same storage facility as the Purchaser, the Purchaser shall transfer, assign or novate, or cause a third-party provider of storage facility to enter into, the same storage service contracts in respect to the Bitcoin Mining Equipment with the Seller instead of the Purchaser.
Section 5.03 Defected Bitcoin Mining Equipment.
In the event that the Bitcoin Mining Equipment, after the Closing, turns out to be not suitable for the intended use and/or has any functional defects, which were not discovered before the Closing for the reasons whatsoever, then the Seller has an absolute right, at its own discretion, to return such defected portion of the Bitcoin Mining Equipment to the Purchaser and the Purchaser shall surrender certain number of Subject Shares with nil consideration in proportionate to the defected portion of the Bitcoin Mining Equipment as to the Bitcoin Mining Equipment as a whole. The Purchaser shall act according to the instructions of the Seller and shall not withhold its consent and cooperation to effect the share surrender.
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Section 5.04 Notice of Certain Events.
The Purchaser shall promptly notify the Seller of the occurrence of any transaction or event or series of transactions or events if prior to the Closing, as applicable, as a consequence to which (A) any representation or warranty made by the Purchaser in this Agreement was, when made, or has subsequently become, untrue or inaccurate in any material respect, or (B) the Purchaser shall fail to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by the Purchaser pursuant to this Agreement or (C) the consummation of the transactions contemplated by this Agreement will be, or would reasonably be expected to be, prevented or materially delayed.
Section 5.05 Commercially Reasonable Efforts.
(a) For the purposes of Closing, (i) the Seller shall use commercially reasonable efforts to cause the conditions set forth in Section 6.01 and Section 6.02 to be satisfied, but subject to any waiver thereof, at Closing to be satisfied on a timely basis and, consistent with using such commercially reasonable efforts, if reasonably practicable, cause such conditions to be satisfied as soon as possible after the date hereof; and (ii) the Purchaser shall use commercially reasonable efforts to cause the conditions set forth in Section 6.01 and Section 6.03 to be satisfied, but subject to any waiver thereof, at Closing to be satisfied on a timely basis and, consistent with using such commercially reasonable efforts, if reasonably practicable, cause such conditions to be satisfied as soon as possible after the date hereof.
(b) As promptly as practicable after the execution of this Agreement, each Party to this Agreement (i) shall make all filings and give all notices reasonably required to be made and given by such Party in connection with the transactions contemplated by this Agreement and (ii) shall use all commercially reasonable efforts to obtain all Consents required to be obtained (pursuant to any applicable Law or Contract, or otherwise) by such Party in connection with the transactions contemplated by this Agreement. Each Party shall, upon request of another Party and to the extent permitted by applicable Law or applicable Contracts, promptly deliver to such other party a copy of each such filing made, each such notice given and each such Consent obtained by it.
(c) The Parties understand and agree that the commercially reasonable efforts of any party hereto shall not be deemed to include entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby. Notwithstanding anything herein to the contrary, Seller shall not be required to contest or defend any objections or oppositions raised by any Governmental Authority relating to the matters contemplated by this Section 5.05, although it may, at its sole discretion, elect to do so.
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Section 5.06 Compliance with Laws. The Seller shall comply in all material respects with all applicable Laws, ordinances, rules, regulations and requirements of any Governmental Authorities.
Section 5.07 Public Disclosure. On the first Business Day following the date of this Agreement, the Seller shall issue a press release and file a Current Report on Form 6-K describing the terms of the transactions contemplated hereunder in the form required by the Exchange Act (the “6-K Filing”).
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ARTICLE VI
CONDITIONS TO PRE-CLOSING AND CLOSING
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(e) Orders. There shall be no Governmental Authority that has
(i) instituted or to the Knowledge of the Purchaser, threatened any action or investigation to restrain, prohibit or otherwise challenge any transaction contemplated under this Agreement;
(ii) to the Knowledge of the Purchaser, threatened to take any action as a result of or in anticipation of transactions contemplated under this Agreement; or
(iii) proposed, enacted, issued, promulgated, enforced or entered any Law or Governmental Order (whether temporary, preliminary or permanent) which would prohibit, restrict or delay the (A) the transactions contemplated by this Agreement, (B) the operation of the Purchaser after the date hereof, including to compel Purchaser to dispose of all or a material portion of its Bitcoin Mining Equipment assets as a result of the consummation of such transactions.
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ARTICLE VII
Section 7.01 Survival of Representations and Warranties.
(a) The representations and warranties of the Parties contained in this Agreement shall survive the Closing until twelve (12) months after the Closing. The covenants and agreements of each Party set forth in this Agreement shall survive the Closing until fully discharged in accordance with their terms. Neither the period of survival nor the liability of the any Party with respect to such Party’s representations, warranties, covenants and agreements shall be reduced by any investigation made at any time by or on behalf of the other Party. If written notice of a claim setting forth reasonable details as to the basis of the claim has been given prior to the expiration of the applicable representations and warranties or prior to the discharge of the applicable covenants or agreement by the Party to the other Party, then the relevant representations, warranties, covenants and agreements shall survive as to such claim, until such claim has been finally resolved.
(b) Notwithstanding the expiration dates set forth in Sections 7.01(a), all representations and warranties made by each Party in this Agreement shall survive indefinitely in the event of fraud or willful or intentional misrepresentation by such Party.
Section 7.02 Indemnification by Seller.
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Following the Closing, the Seller hereof undertakes to fully indemnify and hold harmless each of the Purchaser and its Affiliates and their respective officers, directors, employees, agents, successors and assigns (each a “Seller Indemnified Party”) for and against any and all Liabilities, losses, Damages, claims, costs and expenses, interest, awards, judgments and penalties (including attorneys’ and consultants’ fees and expenses) (each, a “Loss”) actually suffered or incurred by them (including any Action brought or otherwise initiated by any of them), arising out of or resulting from:
(a) the failure of any representation or warranty made by the Seller under this Agreement to be true and accurate when made; or
(b) the breach or violation of, or failure to perform or fulfill, any covenant or agreement by the Seller contained in this Agreement.
(a) the maximum amount of indemnifiable Losses which may be recovered by the Seller Indemnified Parties from the Seller arising out of or resulting from the causes set forth in Section 7.02(a), other than any claim arising from fraud, willful misconduct or intentional misrepresentation or arising out of the breach of any Seller Fundamental Reps, shall be an amount equal to US$100,000.
Section 7.04 Indemnification by Purchaser.
Following the Closing, the Purchaser shall indemnify and hold harmless Seller and its Affiliates and its officers, directors, employees, agents, successors and assigns (each a “Purchaser Indemnified Party”), for and against any and all Liabilities, losses, Damages, claims, costs and expenses, interest, awards, judgments and penalties (including attorneys’ and consultants’ fees and expenses) (each, a “Loss”) actually suffered or incurred by them (including any Action brought or otherwise initiated by any of them), arising out of or resulting from:
(a) the failure of any representation or warranty made by the Purchaser under this Agreement to be true and accurate when made; or
(b) the breach or violation of, or failure to perform or fulfill, any covenant or agreement by Purchaser contained in this Agreement.
(a) the maximum amount of indemnifiable Losses which may be recovered by Purchaser Indemnified Parties from the Purchaser arising out of or resulting from the causes set forth in Section 7.04(a), other than any claim arising from fraud, willful misconduct or intentional misrepresentation or arising out of the breach of any Purchaser Fundamental Reps, shall be an amount equal to US$100,000.
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ARTICLE VIII
(a) by written agreement of the Parties;
(b) by Seller or Purchaser if an injunction, restraining order or decree of any nature of any Governmental Authority of competent jurisdiction is issued that prohibits the consummation of the transactions contemplated hereby due to reasons other than a fault of such Party;
(c) by the Purchaser (i) if the Seller shall have breached, in any material respect, any of its representations, warranties, covenants or other obligations under this Agreement and such breach shall be incapable of cure or has not been cured within fourteen (14) days following the giving of written notice of such breach to the breaching Party, (ii) if there shall have occurred a Seller Material Adverse Effect;
(d) by the Seller (i) if the Purchaser shall have breached, in any material respect, any of its representations, warranties, covenants or other obligations under this Agreement and such breach shall be incapable of cure or has not been cured within fourteen (14) days following the giving of written notice of such breach to the breaching Party, (ii) if there shall have occurred a Purchaser Material Adverse Effect.
The Party desiring to terminate this Agreement pursuant to this Section 8.01 (other than pursuant to Section 8.01(a)) shall give a notice of such termination to the other Party setting forth a brief description of the basis on which such Party is terminating this Agreement.
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ARTICLE IX
if to The9, to:
The9 Limited
17 Xxxxx, Xx. 000 Xx Xxxx Xxxx
Xxxx Xox Xxxxxxxx, Xxxxxxxx 000000
People’s Republic of China
Attention: Xxxxxx Xxx
Facsimile No.: x00-00-0000-0000
if to Purchaser, to:
[ ]
or to such other address or facsimile number as such Party may hereafter specify for the purpose by five-day prior notice to the other Parties.
Section 9.03 Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each Party to this Agreement or, in the case of a waiver, by each Party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
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Section 9.05 Binding Effect; Benefit; Assignment.
(a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. Except with respect to Article VII, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the Parties hereto and their respective successors and assigns.
(b) No party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto. Any assignment in violation of this Section 9.05(b) shall be null and void.
Section 9.06 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of Hong Kong. Nothing in this Agreement shall affect the right to serve process in any manner permitted by Law.
(a) If the Dispute is not resolved within 30 days following the date on which a notice for consultation is given or upon the notice of any party to the Dispute notifying that such consultation has failed, the Dispute shall be finally resolved by arbitration administered by the Hong Kong International Arbitration Centre under the UNCITRAL Arbitration Rules (the “Rules”) as are in force at the time of any such arbitration and as may be amended by the rest of this Section 9.08. For the purpose of such arbitration, there shall be three arbitrators to form an arbitration board (“Arbitration Board”). One arbitrator shall be appointed by Purchaser and one shall be appointed by Seller. All selections shall be made within 30 days after the selecting party gives or receives the demand for arbitration. Such arbitrators shall be freely selected, and the parties shall not be limited in their selection to any prescribed list. The Chairman of the Hong Kong International Arbitration Centre shall select the third arbitrator. If any arbitrator to be appointed by a party has not been appointed and consented to participate within 30 days after the selection of the first arbitrator, the relevant appointment shall be made by the Chairman of the Hong Kong International Arbitration Centre.
(b) The arbitration shall be conducted in Hong Kong under the auspices of the Hong Kong International Arbitration Centre. All arbitration proceedings shall be conducted in English. The arbitrators shall decide any such Dispute or claim strictly in accordance with the governing law specified in Section 9.06. Judgment upon any arbitral award rendered hereunder may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be.
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(c) The Parties shall facilitate the arbitration by (i) cooperating in good faith to expedite (to the maximum extent practicable) the conduct of the arbitration, (ii) making available to one another and to the Arbitration Board for inspection and extraction all documents, books, records, and personnel under their control or under the control of a Person controlling or controlled by such Party if determined by the Arbitration Board to be relevant to the Dispute, (iii) conducting arbitration hearings to the greatest extent possible on successive business days and (iv) using their best efforts to observe the time periods established by the Rules or by the Arbitration Board for the submission of evidence and briefs.
(d) The costs and expenses of the arbitration, including the fees of the arbitration, including the fees of the Arbitration Board, shall be borne by the losing party to the Dispute or claim, and each Party shall pay its own fees, disbursements and other charges of its counsel; provided that the Arbitration Board shall have the right to allocate the costs and expenses between each Party as the Arbitration Board deems equitable.
(e) Any award made by the Arbitration Board shall be final and binding on each of the Parties that were parties to the Dispute. The Parties expressly agree to waive the applicability of any Laws that would otherwise give the right to appeal the decisions of the Arbitration Board so that there shall be no appeal to any court of Law for the award of the Arbitration Board, and a party shall not challenge or resist the enforcement action taken by any other party in whose favor an award of the Arbitration Board was given.
[Signature Page Follows]
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Seller: | ||
The9 Limited | ||
By: | ||
Name:Xxxxxx Xxx | ||
Title:Director | ||
Purchaser: | ||
[ ] | ||
By: | ||
Name: | ||
Title: |
Exhibit A: List of Bitcoin Mining Equipment and its specifications
Exhibit B:
Xxxx of Transfer
WHEREAS, The9 Limited (the “Seller”), and _____ (“Purchaser”), have entered into a Share Purchase Agreement, dated as of ________, 2021 (the “Agreement”), providing for the transfer and assignment by Purchaser to ________ of all of Purchaser’s right, title and interest in, to and under (i) the Bitcoin Mining Equipment (as such term is defined in the Agreement) and (ii) all manufacturer warranties, if any, in favor of ________ in effect for the Bitcoin Mining Equipment.
NOW, THEREFORE, in consideration made pursuant to the Agreement and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Purchaser hereby transfers and assigns to ________ all of Purchaser’s right, title and interest in, to and under (i) the Bitcoin Mining Equipment and (ii) all manufacturer warranties, insurance policies, if any, in favor of ________ in effect for the Bitcoin Mining Equipment. Delivery of an executed counterpart of this Xxxx of Transfer by facsimile transmission or by electronic transmission in PDF format shall be as effective as delivery of a manually executed counterpart hereof. This Xxxx of Transfer shall be governed by and interpreted in accordance with the laws of Hong Kong.
Dated as of ________, 2021
By: | ||
Title: |
Schedule A
The following schedule sets forth all similar agreements the registrant entered into with each of the owners of the cryptocurrencies mining machines. Other than the information set forth below, there is no material difference between such other agreements and this exhibit.
Purchaser | Number of Class A Ordinary Shares |
Total Price for the Cryptocurrencies Mining Machines |
Execution Date |
Xxxxxxx Xxx | 7,042,950 | US$2.6 million | February 8, 2021 |
Xxxx Xxxx | 7,128,240 | US$2.7 million | February 8, 2021 |
Sencheng Jin | 7,042,770 | US$2.6 million | February 8, 2000 |
Xxxxxx Xxxx | 1,951,380 | US$0.7 million | February 8, 2021 |
Xxxx Xxx | 3,673,020 | US$1.4 million | February 8, 2021 |
Xxxxxxx Xxx | 353,100 | US$274,823 |
March 3, 2021 |
Xxxx Xxxx | 2,490,780 | US$1.9 million | March 3, 2021 |
Sencheng Jin | 353,100 | US$274,823 |
March 3, 2021 |
Xxxxxxx Xxxx | 436,860 | US$340,023 |
March 3, 2021 |
Na Zhang | 198,990 | US$154,875 |
March 3, 2021 |