SHARE PURCHASE AGREEMENT - between - CHINA INTERACTIVE LIMITED - and - GIGAMEDIA ASIA PACIFIC LIMITED June 30, 2010
Exhibit 4.44
EXECUTION VERSION
- between -
CHINA INTERACTIVE LIMITED
- and -
GIGAMEDIA ASIA PACIFIC LIMITED
June 30, 2010
This Share Purchase Agreement (this “Agreement”) is entered into and made by and between the
following parties:
CHINA INTERACTIVE LIMITED, (registered number UF36488Z) is a limited liability company
incorporated under the laws of the ▇▇▇▇▇▇▇▇ Islands, whose registered office is at Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ Islands MH 96960 (the “Selling
Shareholder”); and
GIGAMEDIA ASIA PACIFIC LIMITED, (IBC Number 1068168), a company incorporated in the British
Virgin Islands and having its registered office at Overseas Management Company Trust (B.V.I.) Ltd.,
OMC ▇▇▇▇▇▇▇▇, P.O. Box 3152, Road Town, Tortola, British Virgin Islands (the “Purchaser”).
WHEREAS,
(i) Infocomm Asia Holdings Pte. Ltd. (Company Registration Number 200414772H) (the “Company”)
is a private company limited by shares incorporated in Singapore with its registered office at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(ii) The Selling Shareholder owns a total of 3,000,000 Class A Shares; and
(iii) The Selling Shareholder wishes to sell to the Purchaser and the Purchaser wishes to
purchase from the Selling Shareholder, a total of 3,000,000 Class A Shares (the “Purchase Shares”),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1 DEFINITIONS
“Blizzard” means Blizzard Entertainment International, a division of Coöperatie Activision
Blizzard International U.A., a co-operative association at the time of this Instrument.
“Class A Shares” means the class A shares of the Company, par value US$1.00 per share.
“Lien” shall mean with respect to any property or asset, any mortgage, lien, pledge, charge,
security interest, encumbrance or other adverse claim of any kind in respect of such share,
property or asset.
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“Ordinary Shares” means the ordinary shares in the capital of the Company.
“US$” shall mean the lawful currency of the United States of America.
SECTION 2 AGREEMENT TO PURCHASE AND SALE
2.1 Agreement to Purchase and Sale. Subject to the terms and conditions of this
Agreement, the Purchaser shall purchase the Purchase Shares from the Selling Shareholder for an
amount as set out in Section 2.2 below. The issuance and delivery of the Purchase Shares shall
convey good title to the Purchase Shares, free and clear of any and all Liens and with all rights,
attached or accruing to them on and from the Closing;
2.2 Purchase Price. The total purchase price to be paid to the Selling
Shareholder for the Purchase Shares (“Purchase Price”) shall be calculated by multiplying the
purchase price per Purchase Share by the number of the Purchase Shares to be sold by the Selling
Shareholder. The Purchase Price shall be US$3,000,000.
2.3 Payment of the Purchase Price. The Purchase Price shall be paid by the
Purchaser at the Closing in cash via wire transfer of immediately available funds into the bank
account designated by the Selling Shareholder in cash upon receipt of Closing Deliverables.
SECTION 3 CLOSING; DELIVERY
3.1 Closing. The transfer of the Purchase Shares (the “Closing”) shall take place at
the offices of the Company, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ #▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, on July 14,
2010 (the “Closing Date”), or at such other place and time as the parties hereto may mutually
agree. Upon the Closing, all the rights and benefits attached to and in relation to the Purchase
Shares (including but not limited to the dividends attributable to the Selling Shareholder in
respect of any and all Purchase Shares if any) shall be transferred from the Selling Shareholder to
the Purchaser.
3.2 Delivery at the Closing. At the Closing, the Selling Shareholder shall deliver the
following items to the Purchaser:
(i) The total Purchase Shares, together with duly issued share certificate(s) of the total
Purchase Shares.
(ii) A compliance certificate, dated as of the Closing signed by duly authorized
representative of the Selling Shareholder certifying that all the representations and warranties
set forth in Section 4 are true, correct and complete, and all the conditions set forth in Section
6 have been fulfilled; and;
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(iii) All such other documents as may be reasonably required by the Purchaser so as to give
effect to the provisions of this Agreement and the transactions hereby contemplated.
At the Closing, the Purchaser shall pay the Purchase Payment to the Selling Shareholder
against receipt of the deliverable under items (i), (ii) and (iii)of Section 3.2 hereof. On the
date of receipt of the Purchase Payment, the Selling Shareholder shall issue a written receipt
acknowledging such receipt to the Purchaser.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER
The Selling Shareholder hereby represents and warrants to the Purchaser that the statements in
this Section 4 are all true, correct and complete as of the date hereof, as of the Closing Date:
4.1 Valid Issuance of Purchase Shares. The Purchase Shares have been duly authorized
and validly issued and are fully paid and non-assessable, and free and clear of any and all Liens.
The Selling Shareholder is the true and lawful owner of the Purchase Shares with and the full and
valid title to any and all Purchase Shares.
4.2 Due Authorization. All corporate actions by the Selling Shareholder and, as
applicable, their respective officers, directors and shareholders necessary for the authorization,
execution and delivery of, and the performance of any and all obligations of the Selling
Shareholder under this Agreement and all other agreements, instruments and documents executed and
delivered in connection with the transactions contemplated hereby (the “Ancillary Agreements”), has
been taken or will be taken prior to the Closing. This Agreement and the Ancillary Agreements,
when executed and delivered by the Selling Shareholder, are valid and legally binding obligations
of the Selling Shareholder, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, reorganization and similar laws affecting creditors’ rights generally and
to general equitable principles.
4.3 No Conflicts. The execution and delivery of this Agreement and any and all
Ancillary Agreements by the Selling Shareholder and the performance of their respective obligations
hereunder and thereunder will not result in (i) any conflict with the memorandum and
articles of association of the Selling Shareholder, (ii) any breach or violation of,
conflict with or default under any law, statute, regulation, judgment, order, decree, license,
permit or other governmental authorization or any mortgage, lease, agreement, deed of trust,
indenture or any other agreements or instrument to which the Selling Shareholder is a party or by
which the Selling Shareholder or its respective properties or assets are bound, or (iii)
the creation or imposition of any Liens against the Company.
4.4 Governmental Consents. All consent, approval or authorization of, or registration
or filling with, any governmental agency or authority required for the execution and delivery by
the Selling Shareholder of this Agreement and the Ancillary Agreements have been obtained prior to
the Closing.
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SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Selling Shareholder that the statements in
this Section 5 are all true, correct and complete as of the date hereof and as of the Closing Date:
5.1 Authorization. All corporate actions by the Purchaser and, as applicable, its
officers, directors and shareholders necessary for the authorization, execution and delivery of,
and the performance of any and all of its obligations under this Agreement and the Ancillary
Agreements has been taken or will be taken prior to the Closing. This Agreement and the Ancillary
Agreements, when executed and delivered by the Purchaser, constitute valid and legally binding
obligations of the Purchaser, subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, reorganization and similar laws affecting creditors’ rights generally and
to general equitable principles.
5.2 No Conflicts; Consents and Approvals, etc. The execution and delivery of this
Agreement by the Purchaser and the performance of its obligations hereunder will not result in
(i) any conflict with the certificate of incorporation, by-laws or other constitutive
documents of the Purchaser, or (ii) any breach or violation of, conflict with or default
under any applicable law, statute, regulation, judgment, order, decree, license, permit or other
governmental authorization.
SECTION 6 CONDITIONS TO CLOSING BY PURCHASER
The obligations of the Purchaser to complete the Closing are subject to the fulfillment on or
prior to the Closing Date of the following conditions by the Selling Shareholder, any one or more
of which may be waived by the Purchaser in writing:
6.1 Representations and Warranties True and Correct. Any and all the representations
and warranties made by the Selling Shareholder in Section 4 hereof shall be true and correct and
complete when made, and shall be true and correct and complete as of the Closing Date.
6.2 Performance of Obligations. The Selling Shareholder shall have performed and
complied with all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
6.3 Selling Shareholder’s Deliverables. The Selling Shareholder shall have delivered
to the Purchaser the deliverables specified in Section 3.2 prior to or on the Closing Date.
6.4 Voting Rights. The Selling Shareholder hereby undertakes to the Purchaser, during
the period between the execution date of this Agreement and the Closing Date, to exercise or direct
the exercise of the voting and other rights attached to any and all Purchase Shares as instructed
by the Purchaser for any matters in
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connection with the restructuring of the Company related to or in support of the Company’s
transactions with Blizzard, whether pursuant to a right of the shareholder of the Company under the
Shareholders’ Agreement or under the Articles. The Selling Shareholder shall procure that the
director appointed by it on the board of directors of the Company exercises his/her rights in the
same manner as the director appointee of the Purchaser on the board of the Company in respect of
the exercise of the rights described above.
SECTION 7 CONFIDENTIALITY
7.1 Confidential Information. For purpose of this Section 7, the term “Confidential
Information” shall mean the execution, delivery and performance of this Agreement and any and all
information delivered by a party hereto to any of the other party hereto in connection with the
transactions contemplated hereby.
7.2 Non-Disclosure.
(i) Without the prior written consent of the disclosing party, any party receiving the
Confidential Information (a) may not use or disclose to any person any Confidential Information;
and (b) shall make every effort to prevent the use or disclosure of Confidential Information. The
said provisions do not apply to (a) disclosure of Confidential Information to a director or
employee of the receiving party whose function requires him to have the Confidential Information,
(b) disclosure of Confidential Information to a professional adviser for the purpose of advising
the Purchaser, or the Selling Shareholder, (c) Confidential Information which has become public
knowledge other than, directly or indirectly, through the receiving party’s breach of this Section
7.2, or (d) disclosure of Confidential Information required by law or regulation or any competent
authorities, or NASDAQ listing contract, (and then if and to the extent practicable only after
consulting and taking into account the reasonable requirements of the Purchaser, or the Selling
Shareholder, where applicable); provided, however, that in the above situations (a) and (b) the
persons receiving the Confidential Information have undertaken the confidentiality obligations
herein.
(ii) Without the prior written consents of the Purchaser and the Company, the Selling
Shareholder may not disclose to any third party any confidential information about the Company that
it has received.
SECTION 8 MISCELLANEOUS
8.1 Binding Effect; Assignment. This Agreement shall be binding upon and shall be
enforceable by each party, its successors and permitted assigns. No party may assign any of its
rights or obligations hereunder without the prior written consent of the other parties.
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8.2 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the Singapore without giving effect to the conflict of law rules thereof to the
extent such rules would require or permit the application of the laws of another jurisdiction.
8.3 Dispute Resolution. Any dispute relating to or arising from the performance of
this Agreement shall be settled through consultations among the Parties, and if the parties hereto
cannot reach an agreement regarding such disputes within thirty (30) days of their occurrence, such
disputes shall be submitted to the Singapore International Arbitration Center for arbitration in
accordance with the Arbitration Rules of the Singapore International Arbitration Center (“SIAC
Rules”) in force at the time the arbitration is referred.
8.4 Costs and Expenses. Each of the parties hereto shall pay all its own costs and
expenses incident to its negotiation and entry into this Agreement and any other related agreements
or instruments contemplated hereunder or thereunder and to its performance of and compliance with
all agreements and conditions contained herein or therein on its part to be performed or complied
with, including the fees, expenses and disbursements of any counsel and/or accountants that it may
have retained.
8.5 Notices. All notices, requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing and delivered in person,
by courier or by facsimile (along with a copy by certified or registered mail) to the following
addresses:
| (i) | If to the Selling Shareholder, to: |
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CHINA INTERACTIVE LIMITED |
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Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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Facsimile: ▇▇▇-▇▇▇▇-▇▇▇▇ Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇ |
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| (ii) | If to the Purchaser, to: |
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GIGAMEDIA ASIA PACIFIC LIMITED |
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Address: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇/▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ |
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Facsimile: ▇▇▇▇-▇▇▇▇-▇▇▇▇ Telephone: ▇▇▇▇-▇▇▇▇-▇▇▇▇ Attention: General Counsel |
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or, in each case, at such other address as may be specified in writing to the other parties in
accordance with the requirements of this Section 8.5.
All such notices, requests, demands, waivers and other communications shall be deemed to have been
received
(a) if by personal delivery or courier, on the day delivered, or
(b) if by facsimile, (x) if during business hours on a Business Day, on the day on
which such facsimile was sent, or (y) otherwise on the Business Day immediately following
the day on which such facsimile was sent, provided that a copy is also sent by certified or
registered mail.
8.6 Severability. Should any provision of this Agreement be determined to be illegal
unenforceable by competent authorities, such determination shall not affect the legal effect of the
remaining provisions of this Agreement to the greatest extent permitted by applicable law.
8.7 Further Assurances. Each party hereto shall from time to time and at all times
hereafter make do, execute or cause or procure to be made, done and executed such further acts,
deeds, conveyances consents and assurances without further consideration, which may reasonably be
required to effect the transactions contemplated by this Agreement.
8.8 Counterparts. This Agreement may be executed in counterparts and by different
parties hereto on separate copies or counterparts and which taken together shall constitute one and
the same instrument. The facsimile transmissions of any executed original document (including
without limitation, any page of an original document on which an original signature appears) and/or
retransmission of any such facsimile transmission shall be deemed to be the same as the delivery of
an executed original. At the request of any party hereto, the other parties hereto shall confirm
facsimile transmissions by executing duplicate original documents and delivering the same to the
requesting party or parties.
[SIGNATURE PAGE FOLLOWS]
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(Signature Page)
IN WITNESS WHEREOF the parties hereto have caused their duly authorized representatives to execute
this Agreement as of the date first written above.
| CHINA INTERACTIVE LIMITED | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| GIGAMEDIA ASIA PACIFIC LIMITED | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||