SHARE PURCHASE AGREEMENT BY AND AMONG Optimix Media Asia Limited Digital Marketing Group Limited and SiAct Inc. Dated as of September 11, 2024 SHARE PURCHASE AGREEMENT
Exhibit 99.2
BY AND AMONG
Optimix Media Asia Limited
Digital Marketing Group Limited
and
SiAct Inc.
Dated as of September 11, 2024
This SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of September 11, 2024, is entered into by and among:
(1) Digital Marketing Group Limited, a company duly incorporated and validly existing under the Laws of Hong Kong (the “Company”);
(2) Optimix Media Asia Limited, a company duly incorporated and validly existing under the Laws of Hong Kong (the “Seller”); and
(3) SiAct Inc., an exempted company incorporated under the Laws of the Cayman Islands (the “Purchaser”).
Each of the parties listed through (1) to (3) above is referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, the Purchaser desires to acquire from the Seller, and the Seller desires to sell to the Purchaser, on the terms and subject to the conditions set forth herein, 100% equity interest of the Company.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Article 1
Definitions
Section 1.1 Certain Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires:
“Action” means any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Government Authority.
“Affiliate” means, (a) with respect to any Person that is an individual, his or her Immediate Family Members and (b) with respect to any Person that is not an individual, any other Person that directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, such Person. For purpose of this Agreement, the Seller’s Affiliates shall not include any Group Companies, and the Purchaser’s Affiliates shall include all the Group Companies immediately after the Closing Date.
“Agreement” has the meaning ascribed to it in the Preamble.
“Anhui Onepiece Transaction Documents” means the Investment Agreement (《投资协议》) and the Joint Operation Contract (《合资经营合同》) executed among iClick Beijing, Anhui Onepiece and other relevant parties on April 25, 2021, and the amendments executed by the same parties from time to time.
“Bulletin 7” means Bulletin No. 7 issued by the PRC State Administration of Taxation (中国国家税务总局) on February 3, 2015, titled “Bulletin on Certain Questions relating to the Enterprise Income Tax of Indirect Transfers of Assets by Non-Resident Enterprises (关于非居民企业间接转让财产企业所得税若干问题的公告)”, and any amendment, implementing rules, or official interpretation thereof or any replacement, successor or alternative legislation having the same subject matter thereof.
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“Business Day” means a day that is not a Saturday or Sunday or any other day on which banks in the PRC, Hong Kong, the Cayman Islands or the British Virgin Islands are required or authorized to be closed.
“Charter 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.
“Circular 37” means the Circular No. 37 (汇发[2014]37号) issued by the PRC State Administration of Foreign Exchange (中国国家外汇管理局) on July 4, 2014, titled “Notice on Relevant Issues Concerning Foreign Exchange Administration for Domestic Residents to Engage in Overseas Investment and Financing and Round Trip Investment via Special Purpose Companies (国家外汇管理局关于境内居民通过特殊目的公司境外投融资及返程投资外汇管理有关问题的通知)”, including any amendment, implementing rules, or official interpretation thereof or any replacement, successor or alternative legislation having the same subject matter thereof.
“Claim” has the meaning ascribed to it in Section 8.3.
“Closing” has the meaning ascribed to it in Section 2.3.
“Closing Date” has the meaning ascribed to it in Section 2.3.
“Company” has the meaning ascribed to it in the Preamble.
“Confidential Information” has the meaning ascribed to it in Section 6.5.
“Consent” includes an approval, authorization, exemption, filing, license, order, permission, permit, recording or registration from any Governmental Authority or any other Person.
“Contract” means any contract, agreement, indenture, note, bond, mortgage, loan, instrument, lease, franchise, Permit or license (whether written or oral).
“Control” (including the terms “Controlled by” and “under common Control with”) with respect to any Person means the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the management, policies or affairs of such Person, whether through ownership of voting securities, as trustee, personal representative or executor, by contract or otherwise.
“Form ND2A” has the meaning ascribed to it in Section 2.4(d).
“GAAP” means United States generally accepted accounting principles, consistently applied.
“Government Authority” means any nation, government, province, state, or any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government, including any government authority, agency, department, board, commission or instrumentality of any government or any political subdivision thereof, court, tribunal, arbitrator, the governing body of any securities exchange, and self-regulatory organization, in each case having competent jurisdiction.
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“Group Companies” means (i) the Company; (ii) Performance Media Group Limited (“Performance Media”), a company duly incorporated and validly existing under the Laws of Hong Kong; (iii) OptAim (HK) Limited (“OptAim HK”), a company duly incorporated and validly existing under the Laws of Hong Kong; (iv) Tetris (Shanghai) Data Technology Co., Ltd. (“Tetris Shanghai”, 泰司（上海）数据科技有限公司), a company duly incorporated and validly existing under the Laws of PRC; (v) OptAim (Beijing) Information Technology Company Limited (“OptAim Information”, 智云众（北京）信息技术有限公司), a company duly incorporated and validly existing under the Laws of PRC; (vi) iClick Data Technology (Beijing) Limited (“iClick Beijing”, 爱点击（北京）数据科技有限公司), a company duly incorporated and validly existing under the Laws of PRC; (vii) Anhui Onepiece Information Technology Co., Ltd. (“Anhui Onepiece”, 安徽旺匹斯信息技术有限公司), a company duly incorporated and validly existing under the Laws of PRC; and each a “Group Company”.
“HKIAC Rules” has the meaning ascribed to it in Section 9.3(a).
“Immediate Family Members”, with respect to any natural Person, (a) such Person’s spouse, children, parents, grandparents and siblings (in each case whether adoptive or biological), and (b) any other family member who has close relations with such Person.
“Indebtedness” of any Person means, without duplication, (i) the principal of and, accreted value, accrued and unpaid interest, prepayment premiums or penalties and fees and expenses or similar breakage costs or other fees required to be paid under such indebtedness to be satisfied and discharged in full in respect of (A) indebtedness of such Person for borrowed money and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable; (ii) all obligations (contingent or otherwise) of such Person issued or assumed as the deferred purchase price of property or services, all conditional sale obligations of such Person and all obligations of such Person under any title retention the ordinary course of business consistent with the past practice of such Person); (iii) all capitalized lease obligations; (iv) all obligations and Liabilities payable upon termination of interest rate protection agreements, foreign currency exchange agreements or other interest rate or exchange rate hedging or swap arrangements; (v) all obligations of the type referred to in clauses (i) through (iv) of any Persons the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise; and (vi) all obligations of the type referred to in clauses (i) through (v) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person).
“Intellectual Property” means all intellectual property rights in any and all jurisdictions worldwide, including all (i) patents, (ii) trademarks, (iii) works of authorship (including software), copyrights and mask works, (iv) confidential and proprietary information, including trade secrets and confidential and proprietary know-how, inventions, processes, models and methodologies, (v) rights of publicity, privacy and rights to personal information, (vi) registrations, applications, and renewals for any of the foregoing in (i)-(iv), and (vi) all rights in the foregoing and in other similar intangible assets.
“Laws” means any foreign, federal, state, municipal or local law, statute, code, ordinance, rule, decree, regulation or any common law of any Government Authority or jurisdiction.
“Legal Proceeding” means any judicial, administrative or arbitral actions, suits, proceedings or investigations (whether civil or criminal, judicial or administrative, at law or in equity, or public or private) by or before a Government Authority.
“Liabilities” means any indebtedness, liability or obligation (whether direct or indirect, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due), including those arising under any Law, Order, Legal Proceeding or Contract and including all costs and expenses relating thereto.
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“Lien” means any lien (including, without limitation, tax lien), encumbrance, pledge, mortgage, deed of trust, security interest, claim, lease, charge, option, restrictive covenant, right of first refusal, right of first offer, easement, servitude or restriction of any kind, including, without limitation on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership.
“Material Adverse Effect” means (i) any event, occurrence, fact, condition, change or development that has had, has, or could reasonably be expected to have, individually or together with other events, occurrences, facts, conditions, changes or developments, a material adverse effect on the business (as presently conducted and proposed to be conducted), assets (including intangible assets), liabilities, condition (financial or otherwise), property, prospects, employees, operations or results of operations of the Group Companies, taken as a whole; (ii) material impairment of the ability of any Party to perform the material obligations of such Party under any Transaction Documents, or (iii) material impairment of the validity or enforceability of this Agreement or any other Transaction Document against any party hereto or thereto.
“Order” means any written order, injunction, judgment, decree, legally binding notice, ruling, writ, assessment or arbitration award of a Government Authority.
“Permit” means any approval, authorization, consent, license, permit or certificate of or issued by a Government Authority.
“Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Government Authority or other entity.
“PRC” or “China” means the People’s Republic of China, excluding, for purposes of this Agreement, Hong Kong Special Administrative Region of the People’s Republic of China, Macau Special Administrative Region of the People’s Republic of China and Taiwan Islands.
“Purchase Price” has the meaning ascribed to it in Section 2.2.
“Purchased Shares” has the meaning ascribed to it in Section 2.1.
“Purchaser” has the meaning ascribed to it in the Preamble.
“Purchaser Indemnitee” has the meaning ascribed to it in Section 8.1.
“Parties” or a “Party” has the meaning ascribed to it in the Preamble.
“RMB” means Renminbi, the lawful currency of the PRC.
“SAMR” means the State Administration for Market Regulation of the PRC (中国国家市场监督管理总局), or its applicable local counterpart.
“Seller” has the meaning ascribed to it in the Preamble.
“Social Insurance” means any form of social insurance required under applicable Laws, including the PRC national and local contributions for pensions, medical insurance, unemployment insurance, work-related injury insurance, pregnancy benefits, and housing accumulation funds.
“Stamping” has the meaning ascribed to it in Section 6.2(f).
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“Tax” or “Taxes” means (i) in the PRC: (a) any national, provincial, municipal, or local taxes, charges, fees, levies, or other assessments, including, without limitation, 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 of any kind whatsoever, (b) all interest, penalties (administrative, civil or criminal), or additional amounts imposed by any Government Authority in connection with any item described in clause (a) above, and (c) any form of transferor Liabilities imposed by any Government 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) above.
“Transaction Documents” means this Agreement and any other agreements entered into in writing in connection with the transactions contemplated hereby and thereby.
“US$”, “$” or “USD” means United States dollars, the lawful currency of the United States.
“Warrantors” means, prior to and upon the Closing, collectively, the Seller and the Group Companies; immediately after the Closing, the Seller.
Section 1.2 Interpretation and Rules of Construction.
(a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:
(i) the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement;
(ii) any reference in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or a Schedule or Exhibit to, this Agreement, unless otherwise indicated. All Exhibits and Schedules hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein;
(iii) any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa;
(iv) the word “including” or any variation thereof means (unless the context of its usage otherwise requires) “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it;
(v) words such as “herein,” “hereinafter,” “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires;
(vi) references to any statutory provision or any rule or regulation (whether or not having the force of Laws) shall be construed as references to the same as amended, varied, modified, consolidated or re-enacted from time to time and to any subordinate legislation made under such statutory provision;
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(vii) references to any agreement or instrument shall be construed as references to the same as amended, supplemented or novated from time to time; and
(viii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded.
(b) The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
Article 2
Sale and Purchase of Shares
Section 2.1 Sale and Purchase of Shares. Upon the terms and subject to the conditions contained herein, at the Closing, the Seller shall sell to the Purchaser, and the Purchaser shall purchase from the Seller 10,001 shares (the “Purchased Shares”, representing 100% issued and outstanding shares of the Company on a fully-diluted and as-converted basis) free and clear of all Liens.
Section 2.2 Purchase Price. The purchase price to be paid by the Purchaser or by the person designated by the Purchaser for all Purchased Shares shall be an amount equals to RMB1,000,000 or equivalents in US dollars (the “Purchase Price”) (tax-inclusive), which is determined based on the result of the net asset appraisal of the Group Companies (base date of which is June 30, 2024) and the other factors/considerations mutually agreed by the Parties. For the avoidance of doubt, the exchange rate shall be the central parity of USD against RMB published on the official website of the People’s Bank of China on the date that the Purchaser initiates the transfer of the Purchase Price to the Seller.
Section 2.3 Closing Date. Subject to the terms and conditions of this Agreement, the sale and purchase of all Purchased Shares as contemplated by this Agreement (the “Closing”) shall take place via the remote exchange of electronic documents and signatures on a date that is no later than the tenth (10th) Business Day after the satisfaction or valid waiver of each of the conditions set forth in Article 5 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time), unless another time, date or place is agreed to in writing by the Purchaser and the Seller (the date on which the Closing occurs, the “Closing Date”). At the Closing, the Purchased Shares shall be validly transferred to and solely owned by the Purchaser and be attached with good title, fully paid and non-assessable, and free and clear of all Liens, and all the rights, benefits and powers relating to, arising from or in respect of the Purchased Shares shall be validly transferred to and solely owned by the Purchaser. Immediately after the Closing, all the profits and the losses (if any) will be attributed to the Purchaser.
Section 2.4 Closing Deliveries by the Company to the Purchaser. At the Closing, the Company shall, and the Seller shall procure the Company to, deliver or cause to be delivered to the Purchaser:
(a) a draft copy of the register of members of the Company, dated as of the Closing Date, evidencing the ownership by the Purchaser of all Purchased Shares, free and clear of all Liens, the certified copy of which shall be delivered to the Purchaser within ten (10) Business Days after the Stamping;
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(b) a draft copy of share certificate in the name of the Purchaser, dated as of the Closing Date and duly executed by any director of the Company, evidencing the ownership by the Purchaser of all Purchased Shares, the original copy of which shall be delivered to the Purchaser within ten (10) Business Days after the Stamping;
(c) a draft copy of the register of directors of the Company, dated as of the Closing Date, evidencing that all the directors of the Company have been replaced by persons designated by the Purchaser, the certified copy of which shall be delivered to the Purchaser within ten (10) Business Days after the Stamping;
(d) the form ND2A for change of the directors (“Form ND2A”) of the Company shall have been duly executed by the Company, and a copy of which shall have been delivered to the Purchaser by the Company;
(e) the Form ND2A for change of the directors of Performance Media shall have been duly executed by Performance Media, and a copy of which shall have been delivered to the Purchaser by the Company;
(f) the Form ND2A for change of the directors of OptAim HK shall have been duly executed by OptAim HK, and a copy of which shall have been delivered to the Purchaser by the Company; and
(g) such other documents as the Purchaser may reasonably request to evidence the satisfaction of the conditions set forth in Article 5.
Section 2.5 Closing Deliveries by the Seller to the Purchaser. At the Closing, the Seller shall deliver or cause to be delivered to the Purchaser:
(a) executed signature pages to the instrument of transfer and bought and sold notes in respect of the Purchased Shares;
(b) a closing certificate in the form and substance attached to this Agreement as Exhibit B, dated as of the Closing and duly signed by the Seller certifying that the conditions in Section 5.1 (excluding Section 5.1(f)) have been fulfilled on or prior to the Closing Date; and
(c) the documents as the Purchaser may reasonably request to evidence the satisfaction of the conditions set forth in Article 5.
Section 2.6 Closing Deliveries by the Purchaser to the Seller. At the Closing, subject to receipt of the closing documents as required under Sections 2.4 and 2.5, the Purchaser shall (or cause the person designated by the Purchaser to) deliver to the Seller:
(a) executed signature pages to the instrument of transfer and bought and sold notes in respect of the Purchased Shares; and
(b) the Purchase Price by initiation of wire transfer to a bank account of the Seller, provided that a wire instruction in the form and substance attached hereto as Exhibit A (the “Wire Instruction”) shall be provided by the Seller to the Purchaser at least three (3) Business Days prior to the Closing.
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Section 2.7 Failure to Close. If, at the Closing, any of the Warrantors fails to fully comply with any of its obligations set forth in Sections 2.4 and 2.5, the Purchaser shall be entitled to, at its sole discretion and by written notice to the other Parties, elect to (without prejudice to any other rights and remedies that may be available to the Purchaser):
(a) proceed to the Closing so far as practicable;
(b) defer the Closing to a date after the originally scheduled Closing Date; or
(c) immediately terminate this Agreement.
Article 3
Warranties of the Warrantors
Each of the Warrantors, severally and jointly, warrants to the Purchaser that each warranty set out in Schedule A-1 is true, accurate, complete and not misleading from the date hereof to the Closing Date as if repeated immediately before Closing (with references to the date of this Agreement being substituted by references to the Closing Date, but except for representations and warranties made as of a specified date, only as of the specified date) by reference to the facts and circumstances then existing.
Article 4
Warranties of the Purchaser
The Purchaser warrants to the Seller that each warranty set out in Schedule A-2 is true, accurate, complete and not misleading from the date hereof to the Closing Date as if repeated immediately before Closing (with references to the date of this Agreement being substituted by references to the Closing Date, but except for representations and warranties made as of a specified date, only as of the specified date) by reference to the facts and circumstances then existing.
Article 5
Conditions to Closing
Section 5.1 Conditions Precedent. The obligation of the Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by the Purchaser in whole or in part in its sole discretion):
(a) No Restraint. No proceeding shall have commenced by or before any Government Authority seeking to restrain or adversely alter the transactions contemplated by the Transaction Documents which would render it impossible or unlawful to consummate such transactions.
(b) Accuracy of Warranties. The representations and warranties of the Warrantors set forth in Article 3 and Schedule A-1 shall be true, correct and accurate in all respects from the date of this Agreement to the Closing Date as if repeated immediately before Closing (with references to the date of this Agreement being substituted by references to the Closing Date) by reference to the facts and circumstances then existing.
(c) Performance by the Warrantors. Each of the Warrantors having duly performed and complied with, in all respects, the terms, agreements, covenants and conditions required by the Transaction Documents to be performed or complied with by it prior to or at the Closing, and the Purchaser shall have received satisfactory written evidence relating thereto.
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(d) No Material Adverse Effect. Since the date of this Agreement, there shall not have been any Material Adverse Effect.
(e) Due Diligence. The Purchaser shall have completed its legal and financial due diligence investigations of the Group Companies, and the results of the due diligence investigations shall be reasonably satisfactory to the Purchaser.
(f) The Purchaser’s Internal Approval. The Purchaser shall have obtained its internal approval for the transactions contemplated hereunder.
(g) Consents. All Consents (where applicable) required for the execution, delivery and performance of the Transaction Documents and consummation of the transactions contemplated hereunder and thereunder shall have been obtained and remain valid and effective as of the Closing Date.
(h) Proceedings and Documents. All corporate and other proceedings, including but not limited to, shareholders resolutions and board resolutions of the Company, the Seller and iClick Interactive Asia Group Limited (if applicable), approving its execution (as applicable) of the Transaction Documents and consummation of transactions contemplated hereunder and thereunder, shall be satisfactory in substance and form to the Purchaser, and the Purchaser shall have received true copies of such documents.
(i) Replacement of Personnel. The directors, legal representatives, and the supervisors of all the Group Companies shall have signed the resignation letters, and the scanned copies of such letters shall be delivered to the Purchaser by the Seller.
(j) Settlement of Inter-company Balances. The Seller shall have completed the settlement of certain inter-company balances among all the Group Companies and the Seller (or any of the Seller’s Affiliates) to the extent possible, and a list of such settled balances shall be delivered to the Purchaser by the Seller on the Closing Date, which shall be reasonably satisfactory to the Purchaser. With respect to any inter-company balances among all the Group Companies and the Seller (or any of the Seller’s Affiliates) which are not settled prior to the Closing, the Seller shall complete the settlement of such balances in accordance with the provisions of Section 6.2(g).
(k) Contracts Assignment. The Seller or its Affiliates shall have completed the assignment of the contracts of existing clients of the Group Companies (at listed in Schedule B) to the Company or any other Group Company. The true copies of such executed assignments or delegation shall be delivered to the Purchaser. With respect to the contracts of existing clients of the Group Companies which are unable or failed to be assigned prior to the Closing, the Seller or its Affiliates shall perform its obligations in accordance with the provisions of Section 6.2(e).
(l) Completion of Restructuring. The Seller shall have completed the restructuring so that the shareholding structure after such restructuring will be consistent with the organization chart set for in Schedule C, or with other structure mutually agreed by the Seller and the Purchaser in writing.
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(m) Compensation for Laid off Employees. The Seller or its designated Affiliate shall have provided severance payments not exceeding RMB3,000,000 in total to the laid off employees of the applicable Group Companies.
(n) Operation Loan. The Seller or its designated Affiliate shall have executed a loan agreement with applicable Group Company, in which (i) the Seller or its designated Affiliate will provide a loan in an amount of RMB 20,000,000 to the applicable Group Company after the Closing Date; (ii) such loan will be paid by the Seller or its designated Affiliates to the vendors to whom the applicable Group Company owe outstanding debts, or to any other third party for the purpose to maintain the operation of the Group Companies; (iii) the annual interest rate shall be consistent with the market rate mutually agreed by the Seller and the Purchaser; (iv) the applicable Group Company shall pledge its account receivables to the Seller or its designated Affiliate; and (v) the initial term of this loan shall be six (6) months, with the option at the sole discretion of the foregoing Group Company for two (2) extensions, and each extension shall not exceed three (3) months.
(o) Loan Extension. The Purchaser and the Seller shall have agreed on the extension arrangements of the following loans except that any such loan has been fully repaid prior to or on the Closing Date:
| Borrower | Lending Bank | Maturity Date |
| OptAim Information | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) | Sep. 13, 2024 |
| OptAim Information and iClick Beijing | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) |
RMB 112,000,000 will be repaid in three installments on Sep. 19, 2024, Sep. 20, 2024 and Sep. 27, 2024 respectively.
|
| OptAim Information | Ping An Bank Beijing Branch (平安银行北京分行) | Sep. 27, 2024 |
| OptAim Information | HSBC Beijing Branch (汇丰银行北京分行) | Sep. 16, 2024 |
(p) VIE Termination and De-registration of Equity Pledge. Beijing OptAim Network Technology Co., Ltd. (“OptAim Network”. 北京智云众网络科技有限公司) shall have executed a termination agreement to terminate the VIE contracts signed with iClick Beijing, including the Third Amended and Restated Exclusive Call Option Agreement (《第三次经修订与重述的独家购买权合同》), the Third Amended and Restated Equity Pledge Agreement (《第三次经修订与重述的股权质押合同》), Power of Attorney (《授权委托书》), and Exclusive Business Cooperation Agreement (《独家业务合作协议》). iClick Beijing shall have executed applicable SAMR documents to de-register the equity interests of OptAim Network pledged by ▇▇▇▇ ▇▇▇▇ (▇▇) to iClick Beijing.
(q) Capital Contribution. The Company shall have completed the contribution of the paid-in registered capital of iClick Beijing (which is RMB 472,320), and the proof of evidencing of such contribution shall be delivered to the Purchaser.
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(r) Bank Approvals. The Seller shall have obtained the written approvals from the following lending banks for the change of the ultimate controller of OptAim Information and iClick Beijing, and a copy of each approval shall have been delivered to the Purchaser. In the event that any loans have been fully repaid by the applicable Group Company prior to or on the Closing Date, written approval will be no longer required.
| Borrower | Lending Bank | Outstanding
Principals |
Maturity Date |
| OptAim Information | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) | RMB 80,000,000 | · The current maturity date is Sep. 13, 2024. · The maturity date above will be extended to Dec. 30, 2024, which is subject to the approval of SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) |
| OptAim Information and iClick Beijing | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) | RMB 112,000,000 | · RMB 112,000,000 will be repaid in three installments on Sep. 19, 2024, Sep. 20, 2024 and Sep. 27, 2024 respectively. · The maturity dates above will be extended to Dec. 30, 2024, which is subject to the approval of SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行). |
| OptAim Information | Ping An Bank Beijing Branch (平安银行北京分行) | RMB 45,000,000 | Sep. 27, 2024 |
Section 5.2 Further Assurances. Each Warrantor shall use its best endeavors to cause the conditions set forth in Section 5.1 to be satisfied as soon as practicable after the date of this Agreement. Each Warrantor shall promptly notify the Purchaser in writing of (a) all events, circumstances, facts and occurrences arising subsequent to the date of this Agreement which could reasonably be expected to result in any breach of a representation or warranty or covenant or agreement of any Warrantor in this Agreement or which could have the effect of making any representation or warranty of any Warrantor untrue or incorrect in any respect, and (b) all other developments affecting the assets, Liabilities, business, financial condition, operations, result of operations, client relationships, employee relations, projections or prospects of any Group Company.
Article 6
Other Agreements
Section 6.1 Actions Prior to the Closing. From the date hereof until the Closing Date or the early termination of this Agreement, each Group Company shall, and the Seller shall cause each Group Company to, conduct its business and affairs in the ordinary course of business consistent with past practice and use its reasonable efforts to preserve substantially intact its present business organization, keep available the services of its current officers, employees, consultants and contractors, and preserve its current material relationships and goodwill with Governmental Authorities, customers and suppliers, licensors, licensees, distributors and any other persons with which the Group Companies have relations. In addition (and without limiting the generality of the foregoing), except for the purpose to complete the restructuring set forth in the Section 5.1(l) and the settlement of inter-company balances set forth in the Section 5.1(j) of this Agreement or expressly consented to by Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), no Group Company shall and the Seller shall not permit any Group Company to:
(a) make any amendment or supplement to, or terminate, any Charter Document of a Group Company;
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(b) authorize for issuance, issue, sell, pledge, dispose of, transfer, deliver or agree or commit to issue, sell, pledge, dispose of, transfer or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock or other shares, effect any stock split or otherwise change the capitalization of any Group Company as existed on the date of this Agreement;
(c) declare, set aside or pay any dividend or make any other distribution or payment with respect to any shares of the capital stock of the Group Companies;
(d) redeem, purchase or otherwise acquire any shares of the capital stock of the Group Companies, or make any commitment for any such action;
(e) place any Group Company into liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization, redomiciliation or other reorganization;
(f) make any amendment, alteration or change to the powers, designations, preferences, rights, privileges, qualifications, limitations or restrictions of any of a Group Company;
(g) unless required by applicable Laws, (i) modify, extend, or enter into any labor agreement, collective bargaining agreement or any other labor-related agreements or arrangements with any labor union, labor organization, works council or employee representative, or (ii) recognize or certify any labor union, labor organization, works council, or group of employees of any Group Company as the bargaining representative for any employees of any Group Company;
(h) acquire, sell, lease, transfer or otherwise dispose of any asset (including any intellectual property rights) of an amount up to US$15,000 (or the equivalent amount in other currencies), taken as a whole;
(i) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice;
(j) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby (other than responding to takedown notices or other notices or accusations of potential infringement in a manner consistent with past practice in the ordinary course of business);
(k) (i) cancel, materially modify, terminate or grant a waiver of any rights under any material contract in a manner adverse to any Group Company, (ii) enter into a new Contract that contains, unless required by applicable Laws, a change of control provision in favor of the other party or parties thereto or would otherwise require a payment to or give rise to any rights to such other party or parties in connection with the transactions contemplated hereby or (iii) waive, release, cancel, convey or otherwise assign any material rights or claims in a manner adverse to any Group Company; or
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(l) take, propose to take, or agree in writing or otherwise to take, any of the actions described in Section 6.1(a) through Section 6.1(k).
Section 6.2 Post Closing Covenants.
(a) Completion of Personnel Replacement. Save for the Form ND2A which shall be filed by the Company, Performance Media, and OptAim HK with the Companies Registry of Hong Kong respectively within fifteen (15) days after the relevant date of the change of directors of the Company, Performance Media, and OptAim HK, as soon as practicable but no later than forty (40) Business Days commencing from the Closing Date or other longer time period mutually agreed by both the Seller and the Purchaser, the Seller shall cooperate with the Purchaser to complete the replacement all the shareholders, the directors, the legal representatives, the supervisors and other management of each of the Group Companies (to the extent applicable, and including all personnel such as enterprise contact, financial personnel, etc. filed with the competent SAMR or the Companies Registry of Hong Kong) to the Persons designated by the Purchaser.
(b) Change of Bank Mandates and Contact Person. As soon as practicable but no later than thirty (30) Business Days commencing from the Closing Date or other longer time period mutually agreed by both the Seller and the Purchaser, the Seller shall change the authorized signatures to all bank accounts of each of the Group Companies and the authorized contact person with the registered agent to the Person(s) nominated by the Purchaser.
(c) Deliveries by the Seller to the Purchaser. As soon as practicable but no later than ten (10) Business Days commencing from the Closing Date or other longer time period mutually agreed by both the Seller and the Purchaser, the Seller shall deliver the following items of each Group Companies (to the extent applicable) to the Purchaser, including (i) all of its chops and seals; (ii) the originals and all duplicates of its certificate of incorporation, business licenses, corporate registers; and (iii) the USB Keys (U盾) and other electronic devices to operate all its existing bank accounts; (iv) the originals and all duplicates of the accounting ledgers, the accounting vouchers, the business/labor/lease contracts of each Group Company; and (v) the other documents and/or materials as reasonably requested by the Purchaser.
(d) Tax Filing. Each Party shall be responsible for any Tax incurred by it as a result of or in connection with the transactions contemplated under this Agreement and other Transaction Documents in accordance with any applicable Laws (including the Stamp Duty Ordinance (Cap. 117)). In particular, the Seller shall comply with the requirements of the Bulletin 7 and/or the competent PRC Tax authorities to, at its own expenses, timely file with and bear and pay Taxes to the relevant PRC Tax authority to the extent such Taxes are due and payable arising out of the transaction contemplated hereunder; provided that the Group Companies shall coordinate and cooperate with the Seller in connection with any filings with the relevant PRC Tax authority and have timely provided with Seller, the documents or information as required by applicable laws and relevant governmental authorities. The Seller shall indemnify the applicable Group Companies for any losses incurred by such Group Companies as a result of the failure by the Seller to fail to comply with the covenant under Section 6.2(d).
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(e) Contract Modification. If certain contracts listed in Schedule B cannot be assigned due to any reason before the Closing, at the request of the Seller after the Closing, the Purchaser will cause the relevant Group Companies to execute the necessary documents so that (i) the Seller or its designated Affiliates will be duly authorized to continue certain service to certain clients of the Group Companies; and (ii) the relevant Group Company will be obligated to transfer all the proceeds received from such clients to the Seller or its designated affiliates after deducting reasonable expenses and taxes mutually agreed by the Purchaser and the Seller.
(f) Stamping. As soon as practicable after the Closing Date but no later than 30 days from the Closing Date, the Parties shall arrange for the applicable Transaction Documents to be duly stamped (including payment of any stamp duties payable thereon by the Parties in accordance with Section 9.1 of this Agreement) (the “Stamping”).
(g) Settlement of Inter-company Balances. Within forty (40) Business Days commencing from the Closing Date or other longer time period mutually agreed by both the Seller and the Purchaser, the Seller and the Purchaser (as the case may be) shall complete the settlement of or set-off against each other the inter-company balances among all the Group Companies and the Seller (or any of the Seller’s Affiliates) which are not settled prior to the Closing, subject to any adjustments of the inter-company balances or any outstanding inter-company balances as agreed by the Parties.
(h) Loan Repayment. After the Closing Date, unless any of the loans set forth in the chart below have been fully repaid prior to or on the Closing Date, the Seller or its designated Affiliate shall be responsible for repaying all the remaining principals and accrued interests, regardless of whether such the remaining principals and accrued interests have incurred after or before the Closing Date.
| Borrower | Lending Bank | Outstanding Principals |
| OptAim Information | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) | RMB 80,000,000 |
| OptAim Information and iClick Beijing | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) | RMB 112,000,000 |
| OptAim Information | Ping An Bank Beijing Branch (平安银行北京分行) | RMB 45,000,000 |
| OptAim Information | HSBC Beijing Branch (汇丰银行北京分行) | RMB 14,000,000 |
(i) Rights and Obligations in Anhui Onepiece Transaction Documents. After the Closing Date, iClick Beijing shall bear all the obligations and exercise all the rights in Anhui Onepiece Transaction Documents. Neither the Seller nor its Affiliates have any rights or obligations related to the Anhui Onepiece Transaction Documents.
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(j) Guarantee Obligations. The Seller shall cause iClick Interactive Asia Group Limited and iClick Interactive Asia Limited to continue to bear their guarantee obligations owed to the applicable lending banks set forth in the chart below until either such guarantee obligations have been released by the applicable lending banks or the corresponding loan has been fully repaid.
| Borrower | Lending Bank | Outstanding Principals |
Guarantor |
| OptAim Information | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) | RMB 80,000,000 | · iClick Interactive Asia Group Limited · iClick Interactive Asia Limited |
| OptAim Information and iClick Beijing | SPD Silicon Valley Bank Beijing Branch (浦发硅谷银行北京分行) | RMB 112,000,000 | iClick Interactive Asia Limited
|
| OptAim Information | Ping An Bank Beijing Branch (平安银行北京分行) | RMB 45,000,000 | iClick Interactive Asia Limited |
| OptAim Information | HSBC Beijing Branch (汇丰银行北京分行) | RMB 14,000,000 | · iClick Interactive Asia Group Limited · iClick Interactive Asia Limited |
Section 6.3 Exclusivity. From the date hereof until the Closing, unless otherwise agreed by the Purchaser in writing, the Warrantors shall not, and they shall not permit any of their representatives to, solicit, initiate, facilitate, engage in any discussions or negotiations with respect to, adopt, approve, commit to, or conclude any investment transaction with, or any sale of any Purchased Shares or the business or equity of any of the Group Company to, any third party, whether directly or indirectly. The Warrantors shall, and shall cause their representatives and the other members of the Group Companies to, immediately terminate all existing activities, discussions and negotiations with any third parties with respect to the foregoing, and if any of them hereafter receives any correspondence or communication that constitutes, or could reasonably be expected to lead to, any such transaction they shall immediately give notice thereof (including the third party and the material terms of such transaction) to the Purchaser.
Section 6.4 Consent and Waiver. As of the Closing, the Seller, and the Seller shall cause its Affiliates, hereby irrevocably and unconditionally covenants to refrain from, directly or indirectly, asserting any claim or demand, or commencing, instituting or causing to be commenced, any proceeding of any kind against the Company or any of the other Group Companies, or to seek to recover any amounts in connection therewith or thereunder, regardless of whether pursuant to any matter occurring prior to, at or after the Closing. For the avoidance of doubt, such waiver shall not prevent the Seller and its Affiliates from seeking to recover any debts or any account receivables owed by any Group Company agreed by the Seller and the Purchaser.
Section 6.5 Confidentiality and No-Use of Names. The terms and conditions of the Transaction Documents (collectively, the “Confidential Information”), including their existence, shall be considered confidential information and shall not be disclosed by any of the Parties to any other Person except that (i) the Purchaser or the Seller, as appropriate, may disclose any of the Confidential Information to its or its Affiliates current or bona fide prospective investors, employees, investment bankers, lenders, Affiliates, accountants and attorneys, in each case only where such Persons are under appropriate nondisclosure obligations; and (ii) if any Party is requested or becomes legally compelled (including without limitation, pursuant to any Nasdaq rules, requirements of the Securities and Exchange Commission or any other applicable securities Laws) to disclose the existence or content of any of the Confidential Information in contravention of the provisions of this Section 6.5, such Party shall, to the extent legally permissible and reasonably practicable, promptly provide the other Parties with written notice of that fact so that such other Parties may seek a protective order, confidential treatment or other appropriate remedy and in any event shall furnish only that portion of the information that is legally required and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such information. Without the written consent of the Purchaser, the other Parties shall not (i) use in advertising, publicity, announcements, or otherwise, the name of the Purchaser or any of its Affiliates, either alone or in combination of, the associated devices and logos of the above brands or any company name, trade name, trademark, service mark, domain name, device, design, symbol or any abbreviation, contraction or simulation thereof owned or used by the Purchaser or any of its Affiliates, and/or (ii) represent, directly or indirectly, that any product or services provided by such Party or its Affiliates has been approved or endorsed by the Purchaser or any of its Affiliates.
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Article 7
Termination
Section 7.1 Termination of Agreement. This Agreement may be terminated at any time prior to the Closing as follows:
(a) by mutual written consent of the Purchaser and the Seller;
(b) by any Party, if any Law, injunction or order which would render it impossible or unlawful to consummate such transactions shall be in effect and shall have become final and non-appealable;
(c) by either Party, if:
(i) the Closing have not been consummated within ninety (90) calendar days (or such later date as agreed between the Parties in writing) commencing from the date when this Agreement is executed by all the Parties; or
(ii) if there has been a material breach of any representations, warranties, covenants or agreements made by any Warrantor or the Purchaser (as the case may be).
Section 7.2 Procedure Upon Termination. In the event of termination by relevant Party(ies) pursuant to Section 7.1, written notice of such termination shall forthwith be given to the other Parties, and this Agreement shall thereupon terminate without further action by any Party.
Section 7.3 Effect of Termination. In the event that this Agreement is validly terminated in accordance with Section 7.1, each of the Parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without Liabilities to any Party; provided, that no such termination shall relieve any Party hereto from Liabilities for a breach of any of its covenants or agreements or its representations and warranties contained in this Agreement prior to the date of termination, and provided, further, that Section 6.5, this Section 7.3, Article 8 and Article 9 shall survive any such termination.
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Article 8
Indemnificatin and Limitation on claims
Section 8.1 Indemnification. Each Warrantor shall, jointly and severally, indemnify and hold harmless the Purchaser and the Group Companies (only applicable after the Closing) (each, a “Purchaser Indemnitee”) from and against any losses, Liabilities, damages, Liens, penalties, costs and expenses, including but without limitation reasonable advisor’s fees and other reasonable expenses of investigation and defense of any of the foregoing actually incurred or suffered by such Purchaser Indemnitee as a result of, arising out of or in connection with any threatened or pending action, claim, suit, arbitration, alternative dispute resolution mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal, administrative or investigative, that relates to any misrepresentation or any breach of or by a Warrantor of any of its representations, warranties, undertakings, obligations or provisions under this Agreement.
Section 8.2 Limitation on Claims. The aggregate maximum liability of the Warrantors under this Agreement shall not in any event exceed the Purchase Price.
Section 8.3 Liability Exclusions. Any Party will not be liable in respect of any Claim, to the extent that such Claim is attributable to:
(a) an act, omission, transaction or arrangement which would not have arisen but for a default on the part of the other Party on any of the terms herein;
(b) the promulgation of, or a change in, a law or regulation after the Closing Date (whether or not that change has retrospective effect) and such promulgation or change is not contemplated or announced on or prior to the Closing Date; or
(c) a change in accounting polices due to amendments to the applicable financial reporting standards after the Closing Date and such change is not contemplated or announced on or prior to the Closing Date.
Article 9
Miscellaneous
Section 9.1 Expenses. Each Party shall bear its own costs and expenses incurred in connection with the negotiation and execution of this Agreement and each other Transaction Document and the consummation of the transactions contemplated hereby and thereby. All stamp duty payable in respect of the transfer of the Purchased Shares shall be borne by the Seller and the Purchaser in equal shares.
Section 9.2 Governing Law. This Agreement shall be governed by and construed exclusively in accordance with the laws of the Hong Kong (without giving effect to any choice of law principles thereof that would cause the application of the laws of another jurisdiction).
Section 9.3 Arbitration.
(a) Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Hong Kong in accordance with the Hong Kong International Arbitration Center Administered Arbitration Rules (the “HKIAC Rules”) in force when the notice of arbitration is submitted in accordance with the HKIAC Rules. The HKIAC Rules are deemed to be incorporated by reference to this clause. The tribunal shall be comprised of three arbitrators. The Purchaser, on the one hand, and the Seller, on the other hand, shall each nominate one arbitrator and the third, who shall serve as president of the tribunal, shall be nominated by the party-nominated arbitrators. The arbitration shall be conducted in Chinese. Each Party irrevocably and unconditionally consents to such arbitration as the sole and exclusive method of resolving any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, other than any proceedings to seek the remedies of specific performance as contemplated by Section 9.5.
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(b) The award of the arbitral tribunal shall be final and binding on the Parties. The Parties agree that they will not have recourse to any judicial proceedings, in any jurisdiction whatsoever, for the purpose of seeking appeal, annulment, setting aside, modification or any diminution or impairment of its terms or effect insofar as such exclusion can validly be made. Judgment upon any award rendered may be entered in any court having jurisdiction thereof, 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.
Section 9.4 Entire Agreement; Amendments and Waivers. This Agreement (including the schedules and exhibits hereto) and the other Transaction Documents represent the entire understanding and agreement among the Parties with respect to the subject matter hereof and thereof and supersede all other agreements between or among any of the Parties with respect to the subject matters hereof and thereof. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the Parties. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Any agreement on the part of either Party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of either Party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights.
Section 9.5 Specific Performance. The Parties acknowledge and agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof. It is accordingly agreed that prior to such termination, each Party shall be entitled to an injunction or injunctions to prevent such breaches of this Agreement and to enforce specifically (without proof of actual damages or harm, and not subject to any requirement for the securing or posting of any bond in connection therewith) such terms and provisions of this Agreement, this being in addition to any other remedy to which each Party is entitled at law or in equity.
Section 9.6 Notices. All notices and other communications under this Agreement shall be in writing to the Parties and shall be deemed effectively given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by fax (with written confirmation of transmission) or email (provided that the sender of email shall not have received any message that such email was not timely delivered) or (iii) two (2) Business Days following the day sent by overnight courier (with written confirmation of receipt), in each case to the notice information (or to such other notice information as a party may have specified by notice given to the other party pursuant to this provision) as set forth in Schedule D. A Party may change or supplement the notice information given above, or designate additional notice information, for purposes of this Section 9.6 by giving, the other Parties written notice of the new notice information in the manner set forth above.
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Section 9.7 No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of each Party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement; provided that each Purchaser Indemnitee shall have the right to enforce the relevant terms this Agreement by reason of the Contracts (Rights of Third Parties) Ordinance (Cap. 623) of the Laws of Hong Kong, subject to (i) the rights of the Parties to amend or vary this Agreement without the consent of the Persons referred above, and (ii) the terms and conditions of this Agreement.
Section 9.8 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section 9.9 Binding Effect; Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by operation of Law (including, but not limited to, by merger or consolidation) or otherwise by any of the Parties without the prior written consent of the other Parties; provided, however, the Purchaser may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any of its Affiliates. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.
Section 9.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Any counterpart or signature of a party delivered by facsimile, email or similar electronic transmission pursuant to which the signature of (or on behalf of) such party can be seen shall be deemed for all purposes as being a good and valid execution and delivery of this Agreement by such party.
** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK **
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first written above.
| Company: | ||
| Digital Marketing Group Limited | ||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇ | |
| Title: | Authorized Representative | |
| Seller: | ||
| Optimix Media Asia Limited | ||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇ | |
| Title: | Director | |
Signature Page to Share Purchase Agreement
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first written above.
| Purchaser: | ||
| SiAct Inc. | ||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇▇ (▇▇) | |
| Title: | Authorized Representative | |
| By: | /s/ Su Lei | |
| Name: | ▇▇ ▇▇▇ (▇▇) | |
| Title: | Authorized Representative |
| By: | /s/ ▇▇▇▇▇ ▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇ (▇▇) | |
| Title: | Authorized Representative |
Signature Page to Share Purchase Agreement
Schedule
A-1
Warranties of the Warrantors
Each of the Warrantors, severally and not jointly, warrants to the Purchaser that each warranty set out in Schedule A-1 is true, accurate and not misleading from the date hereof to the Closing Date as if repeated immediately before Closing (with references to the date of this Agreement being substituted by references to the Closing Date, but except for representations and warranties made as of a specified date, only as of the specified date) by reference to the facts and circumstances then existing.
1. Organization, Good Standing and Qualification. Each of the Warrantors and the Group Companies is duly organized, validly existing and in good standing (or equivalent status in the relevant jurisdiction) under, and by virtue of, the Laws of the place of its incorporation or establishment 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, and to perform each of its obligations under each of the Transaction Documents. Each of the Group Companies is qualified to do business in the manner presently conducted and is in good standing (or equivalent status in the relevant jurisdiction) in each jurisdiction.
2. Authorization. Each of the Seller and the Company has all requisite power and authority to execute and deliver this Agreement and the other Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the other Transaction Documents by the Seller and the Company, and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of the Seller and the Company. This Agreement has been, and each of the other Transaction Documents to which any Warrantor and the Company is a party will be at or prior to the Closing, duly and validly executed and delivered by such Warrantor and the Company, and this Agreement constitutes, and the other Transaction Documents to which such Warrantor and the Company is a party will constitute, the legal, valid and binding obligations of such Warrantor and the Company, enforceable against it in accordance with their respective terms.
3. Conflicts; Consents of Third Parties.
(a) None of the execution, delivery and performance by any of the Warrantors of this Agreement or the other Transaction Documents to which such Warrantor is a party, the consummation of the transactions contemplated hereby or thereby, or compliance by such Warrantor and the Company with any of the provisions hereof or thereof will breach or conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) or loss of a benefit under, or give rise to a right of termination, consent or cancellation or increase in any fee, Liabilities or obligation under, any provision of (i) the memorandum and articles of association or comparable organizational documents of any Warrantors; (ii) any Contract to which it is a party or any of its Permit; (iii) any Order applicable to any Warrantor and the Company or by which any of the properties or assets of any Warrantor and the Company are bound; or (iv) any applicable Law.
(b) No consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Government Authority or any other Person is required on the part of any Warrantor in connection with the execution and delivery of this Agreement or the other Transaction Documents or the compliance by the any Warrantor with any of the provisions hereof or thereof, or the consummation of the transactions contemplated hereby or thereby.
4. Capitalization.
(a) The share capital of the Company is HK$10,001. The total issued shares of the Company are 10,001 shares, all of which are issued and legally and beneficially owned by the Seller free and clear of all Liens.
Schedule A-1
(b) Immediately after the completion of the restructuring conducted by the Seller, the Company will own 100% equity in Performance Media, OptAim HK and iClick Beijing, all of which are free and clear of all Liens.
(c) Immediately after the completion of the restructuring conducted by the Seller, iClick Beijing will own 19% equity interest (representing RMB 1,900,000 of the registered capital) in Anhui Onepiece, all of which are free and clear of all Liens. For the avoidance of doubt, iClick Beijing has fulfilled its payment obligation by transferring RMB 15,000,000 to Anhui Onepiece.
(d) Subject to Schedule A-3, immediately after the completion of the restructuring conducted by the Seller, Performance Media will own 100% equity interest (representing in total RMB 5,000,000 of the registered capital) in Tetris Shanghai, all of which are free and clear of all Liens. For the avoidance of doubt, the Seller will not contribute the outstanding paid-in registered capital of Tetris Shanghai which is RMB 1,000,000.
(e) Subject to Schedule A-3, immediately after the completion of the restructuring conducted by the Seller, OptAim HK will own 100% equity interest (representing USD 42,356,088 of the registered capital) in OptAim Information, all of which are free and clear of all Liens. For the avoidance of doubt, OptAim HK has completed its capital contribution of the paid-in registered capital in an amount of USD 37,356,088.
(f) There are no options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any kind to which any Warrantor or Group Company is a party or by which any of them is bound obligating any of them (i) to issue, deliver or sell, or refrain from issuing, delivering or selling, any equity securities of any Group Company, or to grant, extend or enter into any such option, right or agreement, (ii) to repurchase, redeem or otherwise acquire, or to refrain from repurchasing, redeeming or otherwise acquiring, any equity securities of any Group Company, or to grant, extend or enter into any such option, right or agreement or (iii) to vote, or to refrain from voting, any equity securities of any Group Company. No Warrantor or Group Company is a party or subject to any Contract that affects or relates to the voting or giving of written consents with respect to, or the right to cause the registration of, any share or other security of any Group Company.
5. Ownership of the Purchased Shares. The Seller is the record and beneficial owner of the Purchased Shares, free and clear of all Liens, and the Seller has the power to sell, transfer, assign and deliver all Purchased Shares as provided in this Agreement, and such delivery will convey to the Purchaser good and marketable title to such Shares, free and clear of all Liens. Each Purchased Share is duly authorized, validly issued, fully paid, non-assessable, and free and clear of all Liens. There is no and has been no entrustment arrangement or dispute (including but not limited to those pending or threatened) in relation to any of the Purchased Shares.
Schedule A-1
Schedule
A-2
Warranties of the Purchaser
The Purchaser warrants to the Seller that each warranty set out in Schedule A-2 is true, accurate and not misleading from the date hereof to the Closing Date as if repeated immediately before Closing (with references to the date of this Agreement being substituted by references to the Closing Date, but except for representations and warranties made as of a specified date, only as of the specified date) by reference to the facts and circumstances then existing.
1. Organization and Good Standing. The Purchaser is duly organized, validly existing and in good standing under the Laws of British Virgin Islands.
2. Authorization. The Purchaser has all requisite power and authority to execute and deliver this Agreement and the other Transaction Documents to which the Purchaser is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each of the other Transaction Documents to which the Purchaser is a party will be at or prior to the Closing, duly and validly executed and delivered by the Purchaser and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and the other Transaction Documents to which the Purchaser is a party will constitute, the legal, valid and binding obligations of the Purchaser, enforceable against it in accordance with their respective terms.
3. Conflicts; Consents of Third Parties. None of the execution, delivery and performance by the Purchaser of this Agreement or the other Transaction Documents to which the Purchaser is a party, the consummation of the transactions contemplated hereby or thereby, or compliance by the Purchaser with any of the provisions hereof or thereof will breach or conflict with, or result in any violation of or default under (with or without notice or lapse of time, or both), any provision of (i) the memorandum and articles of association of the Purchaser; or (ii) any Order or Law applicable to the Purchaser, in each case of (i) and (ii), except as would not, individually or in the aggregate, materially and adversely affect the ability of the Purchaser to carry out its obligations hereunder and under the other Transactions Documents to which it is a party and to consummate the transactions contemplated hereby and thereby.
Schedule A-2
Schedule
A-3
Capitalization
Tetris Shanghai is in process of reducing its registered capital from RMB 5,000,000 to RMB 1,000,000 and such capital reduction shall be completed by the end of 2024, or such later date as agreed by the Parties.
OptAim Information is in the process of reducing its registered capital from USD 42,356,088 to USD 37,356,088 and such capital reduction shall be completed by the end of 2024, or such later date as agreed by the Parties.
Schedule A-3
Schedule
B
List of Existing Contracts To Be Assigned To Group Companies
The Seller confirms that there will be no existing contracts to be assigned from the Seller or its Affiliate to the Group Companies as of the execution date of this Agreement and the Closing Date.
Schedule B
Schedule
C
Orgnization Chart of Group Companies after restrucutring
Schedule C
Schedule
D
Notice Informaiton
| 1. | If to the Purchaser or to the Company (after the Closing): |
| Attention: | ▇▇. ▇▇▇▇ ▇▇▇▇▇ (▇▇) |
| Address: | ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ |
| Email: | ▇▇▇_▇▇▇▇@▇▇▇▇▇▇.▇▇▇ |
| Tel: | +86-21-3230 3931 |
| 2. | If to the Seller or to the Company (at or before the Closing): |
| Attention: | Mr. ▇▇▇▇ ▇▇▇▇ |
| Address: | ▇▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇’▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ |
| Email: | ▇▇▇▇.▇▇▇▇@▇-▇▇▇▇▇.▇▇▇ |
| Tel: | ▇▇▇-▇▇-▇▇▇▇▇▇▇▇ |
Schedule D
Exhibit A
Form of Wire Instruction
To: SiAct Inc.
Date: ____________, 2024
Dear Sir or Madam,
Pursuant to the Share Purchase Agreement dated September ______, 2024 by and among SiAct Inc., Optimix Media Asia Limited (the “Seller”) and certain other parties thereto (the “Purchase Agreement”), please wire the payment listed below in full upon the Closing (as defined in the Purchase Agreement), into the following bank account of the Seller:
| Purchaser | Payment of the Purchase Price |
| SiAct Inc. | RMB 1,000,000 or equivalents in US dollars |
| Information of the Bank Account of Seller | |
| A/C No. | *** |
| A/C Name | *** |
| Beneficiary Bank | *** |
| SWIFT Code of Beneficiary Bank | *** |
| Address of Beneficiary Bank | *** |
Best regards,
Optimix Media Asia Limited
| By: |
Name:
Title: Authorized Representative
Exhibit A
Exhibit B
Form of closing certificate
Closing Certificate
To: SiAct Inc. (the “Purchaser”)
Reference is hereby made to that certain Share Purchase Agreement (the “Purchase Agreement”) dated September ______, 2024 by and among the Purchaser, Optimix Media Asia Limited (the “Seller”), and Digital Marketing Group Limited (the “Company”). Capitalized terms used herein without definition shall have the meanings set forth in the Purchase Agreement.
The Seller hereby acknowledges and irrevocably warrants and certifies to the Purchaser that:
| 1. | all the representations and warranties made by each Warrantor in Article 3 of the Purchase Agreement are true, correct, accurate, complete and not misleading; |
| 2. | all the conditions specified in Section 5.1 of the Purchase Agreement (to the extent that they are to be fulfilled by the Purchaser) have been fulfilled in their entirety as of the date hereof; and |
| 3. | there has been no Material Adverse Effect on any Group Company since the date of the Purchase Agreement. |
This Closing Certificate may be executed and delivered by electronic PDF, facsimile, email, scanned copies or any other electronic form of signatures and in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile, e-mailed, electronic PDF, scanned or any other electronic form of copies of signatures shall be deemed to be originals for purposes of the effectiveness of this Closing Certificate.
Optimix Media Asia Limited
| By: |
Name:
Title: Authorized Representative
Exhibit B