UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
Shanda Games
Limited
(Name of Issuer)
Class A Ordinary Shares, par value US$0.01 per share
(Title of Class of Securities)
81941U105**
(CUSIP
Number)
Guan Ning
Orient Finance Holdings (Hong Kong) Limited
29/F, 100 Queen’s Road Central, Central
Hong Kong
(852) 3519
1188
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
June 25, 2015
(Date of
Event Which Requires Filing of This Statement)
If the filing
person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box: ¨
Note. Schedules filed in paper format shall
include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
| * |
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page. |
| ** |
This CUSIP applies to the American Depositary Shares, evidenced by American Depositary Receipts, each representing two Class A ordinary shares. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of
the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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| (1) |
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Name of
reporting person Orient Finance Holdings (Hong Kong) Limited |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
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| (4) |
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Source of funds (see instructions)
Not applicable |
| (5) |
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
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Citizenship or place of
organization Hong Kong |
| Number of
shares beneficially
owned by each
reporting person
with |
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(7) |
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Sole voting power
0 |
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(8) |
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Shared voting power
0 |
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(9) |
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Sole dispositive power
0 |
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(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
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Percent of class represented by amount
in Row (11) 0.0% |
| (14) |
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Type of reporting person (see
instructions) CO |
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Name of
reporting person Orient Zhisheng Investment Center (Shanghai) L.P. |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
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| (4) |
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Source of funds (see instructions)
Not applicable |
| (5) |
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
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Citizenship or place of
organization The People’s Republic of
China |
| Number of
shares beneficially
owned by each
reporting person
with |
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(7) |
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Sole voting power
0 |
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(8) |
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Shared voting power
0 |
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(9) |
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Sole dispositive power
0 |
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(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
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Percent of class represented by amount
in Row (11) 0.0% |
| (14) |
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Type of reporting person (see
instructions) PN |
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| (1) |
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Name of
reporting person Orient Hongtai Capital Management (Shanghai) Co., Ltd. |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
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| (4) |
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Source of funds (see instructions)
Not applicable |
| (5) |
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
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Citizenship or place of
organization The People’s Republic of
China |
| Number of
shares beneficially
owned by each
reporting person
with |
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(7) |
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Sole voting power
0 |
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(8) |
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Shared voting power
0 |
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(9) |
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Sole dispositive power
0 |
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(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
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Percent of class represented by amount
in Row (11) 0.0% |
| (14) |
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Type of reporting person (see
instructions) CO |
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| (1) |
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Name of
reporting person Orient Zhihui Investment Center (Shanghai) L.P. |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
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| (4) |
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Source of funds (see instructions)
Not applicable |
| (5) |
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
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Citizenship or place of
organization The People’s Republic of
China |
| Number of
shares beneficially
owned by each
reporting person
with |
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(7) |
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Sole voting power
0 |
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(8) |
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Shared voting power
0 |
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(9) |
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Sole dispositive power
0 |
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(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
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Percent of class represented by amount
in Row (11) 0.0%
(2) |
| (14) |
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Type of reporting person (see
instructions) PN |
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Name of
reporting person Orient Hongtai Capital Management (Beijing) Co., Ltd. |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
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| (4) |
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Source of funds (see instructions)
Not applicable |
| (5) |
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
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Citizenship or place of
organization The People’s Republic of
China |
| Number of
shares beneficially
owned by each
reporting person
with |
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(7) |
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Sole voting power
0 |
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(8) |
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Shared voting power
0 |
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(9) |
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Sole dispositive power
0 |
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(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
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Percent of class represented by amount
in Row (11) 0.0% |
| (14) |
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Type of reporting person (see
instructions) CO |
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| (1) |
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Name of
reporting person Orient Ruide Capital Management (Shanghai) Co., Ltd. |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
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| (4) |
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Source of funds (see instructions)
Not applicable |
| (5) |
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
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Citizenship or place of
organization The People’s Republic of
China |
| Number of
shares beneficially
owned by each
reporting person
with |
|
(7) |
|
Sole voting power
0 |
|
(8) |
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Shared voting power
0 |
|
(9) |
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Sole dispositive power
0 |
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(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
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Percent of class represented by amount
in Row (11) 0.0% |
| (14) |
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Type of reporting person (see
instructions) CO |
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| (1) |
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Name of
reporting person Orient Securities Capital Company Limited |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
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| (4) |
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Source of funds (see instructions)
Not applicable |
| (5) |
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
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Citizenship or place of
organization The People’s Republic of
China |
| Number of
shares beneficially
owned by each
reporting person
with |
|
(7) |
|
Sole voting power
0 |
|
(8) |
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Shared voting power
0 |
|
(9) |
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Sole dispositive power
0 |
|
(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
|
Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
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Percent of class represented by amount
in Row (11) 0.0% |
| (14) |
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Type of reporting person (see
instructions) CO |
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| (1) |
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Name of
reporting person Orient Securities Company Limited |
| (2) |
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Check the appropriate box if a member
of a group (see instructions)
(a) x (b) ¨ |
| (3) |
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SEC use only
|
| (4) |
|
Source of funds (see instructions)
Not applicable |
| (5) |
|
Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e) ¨ |
| (6) |
|
Citizenship or place of
organization The People’s Republic of
China |
| Number of
shares beneficially
owned by each
reporting person
with |
|
(7) |
|
Sole voting power
0 |
|
(8) |
|
Shared voting power
0 |
|
(9) |
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Sole dispositive power
0 |
|
(10) |
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Shared dispositive power
0 |
| (11) |
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Aggregate amount beneficially owned by each reporting person
0 |
| (12) |
|
Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
| (13) |
|
Percent of class represented by amount
in Row (11) 0.0% |
| (14) |
|
Type of reporting person (see
instructions) CO |
Introduction.
This statement on Schedule 13D/A (this “Statement”) amends the previous Schedule 13D filed by Orient Finance Holdings (Hong Kong)
Limited and Orient Securities Company Limited with the Securities and Exchange Commission on September 11, 2014, as amended and supplemented by the Amendment No. 1 filed under Schedule 13D/A on September 25, 2014, the Amendment
No. 2 filed under Schedule 13D/A on November 24, 2014, the Amendment No. 3 filed under Schedule 13D/A on March 20, 2015, the Amendment No. 3 filed under Schedule 13D/A on April 13, 2015 (the “Original 13D”)
with respect to Shanda Games Limited (the “Issuer”). Except as amended and supplemented herein, the information set forth in the Original 13D remains unchanged. Capitalized terms used herein without definition have meanings assigned
thereto in the Original 13D.
| Item 2. |
Identity and Background. |
Item 2 is hereby amended and restated as follows:
(a)-(c) This Statement is being filed jointly by and on behalf of (a) Orient Finance Holdings (Hong Kong) Limited, a company
incorporated under the laws of Hong Kong (“Orient HK”), (b) Orient Zhisheng Investment Center (Shanghai) L.P., a limited partnership organized under the laws of the People’s Republic of China (“Orient Zhisheng”),
(c) Orient Hongtai Capital Management (Shanghai) Co., Ltd., a company established under the laws of the People’s Republic of China (“Hongtai Shanghai”), (d) Orient Zhihui Investment Center (Shanghai) L.P., a limited
partnership organized under the laws of the People’s Republic of China (“Orient Zhihui”), (e) Orient Hongtai Capital Management (Beijing) Co., Ltd., a company established under the laws of the People’s Republic of China
(“Hongtai Beijing”), (f) Orient Ruide Capital Management (Shanghai) Co., Ltd., a company established under the laws of the People’s Republic of China (“Orient Ruide”), (g) Orient Securities Capital Company Limited,
a company established under the laws of the People’s Republic of China (“Orient Capital”) and (h) Orient Securities Company Limited, a company established under the laws of the People’s Republic of China (“Orient
Securities,” together with Orient HK, Orient Zhisheng, Hongtai Shanghai, Orient Zhihui, Hongtai Beijing, Orient Ruide, and Orient Capital, the “Reporting Persons”).
Orient HK’s principal business is making equity investments in private and public companies. Its principal business address, which also
serves as its principal office, is 29/F, 100 Queen’s Road Central, Central, Hong Kong. Orient HK is directly wholly owned by Orient Securities.
Orient Zhisheng’s principal business is provision of investment management and consultancy services. Its principal business address,
which also serves as its principal office, is 36F, Building No. 2, Orient International Finance Center, 318 South Zhong Shan Road, Shanghai, the People’s Republic of China. Hongtai Shanghai and Orient Capital are its general partners.
Hongtai Shanghai’s principal business is acting as the general partner of Orient Zhisheng. Its principal business address, which also
serves as its principal office, is 36F, Building No. 2, Orient International Finance Center, 318 South Zhong Shan Road, Shanghai, the People’s Republic of China. Hongtai Shanghai is directly wholly owned by Orient Ruide.
Orient Zhihui’s principal business is provision of investment management and consultancy
services. Its principal business address, which also serves as its principal office, is 36F, Building No. 2, Orient International Finance Center, 318 South Zhong Shan Road, Shanghai, the People’s Republic of China. Hongtai Beijing and
Orient Capital are its general partners.
Hongtai Beijing’s principal business is acting as the general partner of Orient Zhihui. Its
principal business address, which also serves as its principal office, is 1219, Techart Plaza, 30 Xue Yuan Road, Haidian District, Beijing, the People’s Republic of China. Hongtai Beijing is directly wholly owned by Orient Ruide.
Orient Ruide’s principal business is provision of investment management and consultancy services. Its principal business address, which
also serves as its principal office, is 36F, Building No. 2, Orient International Finance Center, 318 South Zhong Shan Road, Shanghai, the People’s Republic of China. Orient Ruide is directly wholly owned by Orient Capital.
Orient Capital’s principal business is making equity investments in private and public companies. Its principal business address, which
also serves as its principal office, is 36F, Building No. 2, Orient International Finance Center, 318 South Zhong Shan Road, Shanghai, the People’s Republic of China. Orient Capital is directly wholly owned by Orient Securities.
Orient Securities is a financial service firm providing securities brokerage, investment consultancy, and equity and debt financing services.
Its principal business address, which also serves as its principal office, is 22, 23, and 25-29F, Building No. 2, Orient International Finance Center, 318 South Zhong Shan Road, Shanghai, the People’s Republic of China.
(d) None of the Reporting Persons has been convicted in a criminal proceeding the past five years (excluding traffic violations or similar
misdemeanors).
(e) During the past five years, none of the Reporting Persons was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws
or finding mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
| Item 3. |
Source and Amount of Funds or Other Consideration. |
Item 3 is hereby amended and restated as follows:
Not applicable.
| Item 4. |
Purpose of Transaction. |
Item 4 is hereby amended and restated as follows:
On January 27, 2014, Shanda Interactive Entertainment Limited (“Shanda Interactive”) and Primavera Capital (Cayman) Fund I L.P.
(“Primavera”) (together with Shanda Interactive, the “Initial Consortium” and each member in the Initial Consortium, a “Initial Consortium Member”) entered into a consortium agreement (the “Initial Consortium
Agreement”). Under the Initial Consortium Agreement, the Initial Consortium Members agreed, among other things, (i) to jointly deliver a preliminary non-binding proposal to the board of directors of the Issuer (the “Board”) to
acquire the Issuer in a going-private transaction (the “Initial Consortium Transaction”), (ii) to deal exclusively with each other with respect to the Initial Consortium Transaction until the earlier of (x) nine months after the
date thereof, and (y) termination of the Initial Consortium Agreement by all Initial Consortium Members, (iii) to use their reasonable efforts and cooperate in good faith to arrange debt financing to support the Initial Consortium
Transaction, and (iv) to cooperate and proceed in good faith to negotiate and consummate the Initial Consortium Transaction.
On
January 27, 2014, Shanda SDG Investment Limited (“SDG”), a wholly-owned subsidiary of Shanda Interactive, and Primavera entered into a share purchase agreement (the “Primavera Share Purchase Agreement”) pursuant to which SDG
sold, and Primavera purchased, 28,959,276 Class A Ordinary Shares (the “Primavera Purchase Shares”) at US$2.7625 per Class A Ordinary Share. The purchase and sale of the Primavera Purchase Shares was completed on
February 17, 2014.
On April 18, 2014, SDG and Perfect World Co., Ltd. (“Perfect World”) entered into a share purchase
agreement (the “PW Share Purchase Agreement”) pursuant to which SDG sold, and Perfect World purchased, 30,326,005 Class A Ordinary Shares (the “PW Purchase Shares”) at US$3.2975 per Class A Ordinary Shares. The purchase
and sale of the PW Purchase Shares was completed on May 16, 2014.
Concurrently with the execution of the PW Share Purchase
Agreement, Shanda Interactive, Primavera and Perfect World entered into an adherence agreement (the “PW Adherence Agreement”), pursuant to which Perfect World became a party to the Initial Consortium Agreement and joined the Initial
Consortium.
On April 25, 2014, FV Investment Holdings (“FV Investment”), which is an affiliate of FountainVest Partners,
Shanda Interactive, Primavera and Perfect World entered into an adherence agreement (the “FV Adherence Agreement”), pursuant to which FV Investment became a party to the Initial Consortium Agreement and joined the Initial Consortium.
On May 19, 2014, CAP IV Engagement Limited (“Carlyle”), which is an affiliate of Carlyle Asia Partners IV, L.P., Shanda
Interactive, Primavera, Perfect World and FV Investment entered into an adherence agreement (the “Carlyle Adherence Agreement”), pursuant to which Carlyle became a party to the Initial Consortium Agreement and joined the Initial
Consortium.
On August 31, 2014, SDG and Orient HK entered into a share purchase agreement (the “Orient Share Purchase
Agreement”) pursuant to which SDG agreed to sell, and Orient HK agreed to purchase, 123,552,669 Class A Ordinary Shares (the “Orient Purchase Shares”) at US$3.45 per Class A Ordinary Share (the “Orient Purchase
Price”) subject to the terms and conditions thereof. Pursuant to the Orient Share Purchase Agreement, if (i) a going-private transaction occurs within one year of the closing date of the sale of the Orient Purchase Shares where Orient HK
is part of the buyer consortium and the Going-private Price is higher than the Orient Purchase Price, or (ii) a going-private transaction occurs within one year of the closing date of the sale of the Orient Purchase Shares where Orient HK is
not part of the buyer consortium due to its own decision or election without SDG’s written consent and the Going-private Price is higher than the Orient Purchase Price, Orient shall pay SDG the shortfall between the Orient Purchase Price and
the Going-private Price with respect to all the Orient Purchase Shares. Pursuant to the Orient Share Purchase Agreement, if a going-private transaction is not consummated within one year of the closing date of the sale of the Orient Purchase Shares
solely due to SDG’s failure to vote in favor of such going-private transaction, SDG shall repurchase the Orient Purchase Shares at a per share price equal to the Orient Purchase Price. The purchase and sale of the Orient Purchase Shares was
completed on September 23, 2014.
On September 1, 2014, Perfect World, FV Investment and Carlyle withdrew from the Initial
Consortium pursuant to a withdrawal notice (the “Withdrawal Notice”).
On September 1, 2014, Shanda Interactive, Primavera
and Orient HK entered into an adherence agreement (the “Orient Adherence Agreement”), pursuant to which Orient HK became a party to the Initial Consortium Agreement and joined the Initial Consortium.
On September 1, 2014, SDG and Shanghai Buyout Fund L.P., a limited partnership formed under the laws of the People’s Republic of
China (“Haitong”) entered into a share purchase agreement (the “Haitong Share Purchase Agreement I”) pursuant to which SDG agreed to sell, and Haitong agreed to purchase, 48,152,848 Class A Ordinary Shares (the “Haitong
Purchase Shares”) at US$3.45 per Class A Ordinary Share subject to the terms and conditions thereof. The purchase and sale of the Haitong Purchase Shares was completed on September 23, 2014.
Concurrently with the execution of the Haitong Share Purchase Agreement I, Primavera, Perfect World and Haitong entered into a share purchase
agreement (the “Haitong Share Purchase Agreement II”), pursuant to which Haitong agreed to purchase 28,959,276 and 30,326,005 Class A Ordinary Shares (collectively, the “Haitong Secondary Purchase Shares”) from Primavera and
Perfect World, respectively. The purchase and sale of the Haitong Secondary Purchase Shares was completed on September 23, 2014. In connection with the transaction, SDG, Primavera and Perfect World entered into a consent and release dated as of
September 1, 2014 (the “Consent and Release”), pursuant to which all remaining obligations of Primavera and its affiliates and SDG and its affiliates under the Primavera Share Purchase Agreement, and all remaining obligations of
Perfect World and its affiliates and SDG and its affiliates under the PW Share Purchase Agreement, as applicable, automatically terminated upon consummation of the transaction.
On September 1, 2014, Shanda Interactive, Primavera and Haitong entered into an adherence agreement (the “Haitong Adherence
Agreement”), pursuant to which Haitong became a party to the Initial Consortium Agreement and joined the Initial Consortium.
On
September 1, 2014, SDG and Ningxia Zhongyincashmere International Group Co., Ltd, a company formed under the laws of the People’s Republic of China (“Ningxia”) entered into a share purchase agreement (the “Ningxia Share
Purchase Agreement”) pursuant to which SDG agreed to sell, and Ningxia agreed to purchase, 80,577,828 Class A Ordinary Shares (the “Ningxia Purchase Shares”) at US$3.45 per Class A Ordinary Share subject to the terms and
conditions thereof. The purchase and sale of the Ningxia Purchase Shares was completed on September 23, 2014.
On September 1,
2014, Shanda Interactive, Primavera and Ningxia entered into an adherence agreement (the “Ningxia Adherence Agreement”), pursuant to which Ningxia became a party to the Initial Consortium Agreement and joined the Initial Consortium.
On September 1, 2014, Primavera withdrew from the Initial Consortium pursuant to a withdrawal notice (the “Primavera Withdrawal
Notice”). From and after September 1, 2014, references to the “Initial Consortium” or the “Initial Consortium Members” should include Shanda Interactive, Ningxia, Orient HK and Haitong, and should not include Perfect
World, FV Investment, Carlyle or Primavera.
On October 27, 2014, the exclusivity period under the Initial Consortium Agreement
expired. On October 28, 2014, Shanda Interactive and Ningxia entered into a letter agreement (the “Exclusivity and Release Letter”), pursuant to which (i) Shanda Interactive and Ningxia agreed to continue to work exclusively with
each other until November 25, 2014 to undertake a going-private transaction involving the Company; (ii) Ningxia agreed to release Shanda Interactive and its affiliates from any and all liabilities or claims relating to, among other things,
the Initial Consortium Agreement, the Initial Consortium Transaction and any proposal or offer of similar transactions; and (iii) Ningxia agreed to indemnify Shanda Interactive and its affiliates against any and all liabilities or claims
relating to, among other things, the Initial Consortium Agreement, the Initial Consortium Transaction and any proposal or offer of similar transactions, and Shanda Interactive’s negotiation, execution, delivery and performance of the
Exclusivity and Release Letter.
On November 24, 2014, Orient HK entered into two share purchase agreements with each of
Orient Hongtai (Hong Kong) Limited, a company incorporated under the laws of Hong Kong (“Orient Hongtai”)(the “Hongtai Share Purchase Agreement”) and Orient Hongzhi (Hong Kong) Limited, a company incorporated under the laws of
Hong Kong (“Orient Hongzhi”) (the “Hongzhi Share Purchase Agreement”), pursuant to which Orient Hongtai and Orient Hongzhi purchased, 61,776,334 Class A Ordinary Shares and 61,776,335 Class A Ordinary Shares,
respectively, from Orient HK.
On November 25, 2014, SDG, Ningxia, Zhongrong Shengda Investment Holdings (Hong Kong) Company Limited,
a company established under the laws of Hong Kong (“Zhongrong Shengda”), and Yili Shengda Investment Holdings (Hong Kong) Company Limited, a company formed under the laws of Hong Kong (“Yili Shengda”) entered into a share
purchase agreement (the “SDG Class B Share Purchase Agreement”), pursuant to which each of Zhongrong Shengda and Yili Shengda agreed to purchase 48,759,187 Class B Ordinary Shares from SDG. The purchase and sale under the SDG
Class B Share Purchase Agreement were completed on the same day (the “Closing”). As a result, all of the Class B Ordinary Shares held by SDG immediately prior to the Closing were transferred to Zhongrong Shengda and Yili Shengda, and SDG
no longer beneficially owns any ordinary shares of the Issuer.
On December 5, 2014, Ningxia Yilida Capital Investment Limited
Partnership, an affiliate of Yili Shengda (“Ningxia Yilida”) and Ningxia (together with Ningxia Yilida, the “Second Consortium,” and each member of the Second Consortium, a “Second Consortium Member”) entered into a
consortium agreement (the “Second Consortium Agreement”). Under the Second Consortium Agreement, the Second Consortium Members agreed, among other things, (i) to acquire the Issuer in a going private transaction (the “Second
Consortium Transaction”), (ii) to deal exclusively with each other with respect to the Second Consortium Transaction until the earlier of (x) February 6, 2015, and (y) termination of the Second Consortium Agreement, and
(iii) to cooperate and proceed in good faith to negotiate and consummate the Second Consortium Transaction. The Second Consortium Members intended to acquire the Issuer at a price of US$6.90 in cash per ADS (each representing two Class A
Ordinary Shares) or $3.45 in cash per Class A or Class B Ordinary Share. Pursuant to its terms, the Second Consortium Agreement terminated automatically on February 6, 2015 upon the expiration of the exclusivity period.
On March 16, 2015, Ningxia Yilida, Ningxia, Orient Hongtai, Orient Hongzhi and Hao Ding International Limited, a British Virgin Islands
company controlled by Haitong that directly holds the 107,438,129 Class A Ordinary Shares beneficially owned by Haitong (“Hao Ding”, together with Ningxia Yilida, Ningxia, Orient Hongtai and Orient Hongzhi, the “Third
Consortium,” and each member of the Third Consortium, a “Third Consortium Member”), entered into a consortium agreement (the “Third Consortium Agreement”). Under the Third Consortium Agreement, the Third Consortium Members
agreed, among other things, (i) to acquire the Issuer in a going private transaction (the “Transaction”), (ii) to deal exclusively with each other with respect to the Third Consortium Transaction until the earlier of
(x) April 30, 2015, and (y) termination of the Third Consortium Agreement, and (iii) to cooperate and proceed in good faith to negotiate and consummate the Third Consortium Transaction.
On April 3, 2015, the Issuer entered into an agreement and plan of merger (the “Merger Agreement”) with Capitalhold Limited, a
Cayman Islands company (“Capitalhold”) and Capitalcorp Limited, a Cayman Islands company and a wholly-owned subsidiary of Capitalhold (“Merger Sub”). Pursuant to the Merger Agreement, Merger Sub will be merged with and into the
Issuer (the “Merger”), with the Issuer surviving the Merger and becoming a wholly-owned subsidiary of Capitalhold as a result of the Merger. At the effective time of the Merger, each of the Issuer’s Class A Ordinary Shares issued
and outstanding immediately prior to the effective time of the Merger (including Ordinary Shares represented by ADSs) will be cancelled in consideration for the right to receive $3.55 per Ordinary Share or US$7.10 per ADS, in each case, in cash,
without interest and net of any applicable withholding taxes, except for (i) the Ordinary Shares held by each of Yili Shengda, Zhongrong Shengda, Zhongrong, Orient Hongtai, Orient Hongzhi, and Hao Ding (such shareholders, the “Rollover
Shareholders,” and such Ordinary Shares, the “Rollover Shares”), and any Ordinary Shares held by Capitalhold, the Issuer or any of their subsidiaries immediately prior to the effective time of the Merger, each of which will be
cancelled without payment of any consideration or distribution therefor, and (ii) Ordinary Shares owned by holders who have validly exercised and not effectively withdrawn or lost their rights to dissent from the Merger pursuant to
Section 238 of the Companies Law of the Cayman Islands, which Ordinary Shares will be cancelled at the effective time of the Merger for the right to receive the fair value of such Ordinary Shares determined in accordance with the provisions of
Section 238 of the Companies Law of the Cayman Islands. The Merger is subject to the approval of the Issuer’s shareholders and various other closing conditions.
Concurrently with the execution of the Merger Agreement, the Rollover Shareholders entered into a
support agreement (the “Support Agreement”) with Capitalhold, pursuant to which the Rollover Shareholders agreed, among other things, that (i) each of them will vote the Rollover Shares in favor of the authorization and approval of
the Merger Agreement and the transactions contemplated thereunder, including the Merger, and (ii) the Rollover Shares will be cancelled without payment of any consideration or distribution therefor at the effective time of the Merger.
Concurrently with the execution of the Merger Agreement, each of Ningxia Zhongrong Legend Equity Investment Partnership Enterprise (Limited
Partnership), a partnership established under the laws of the People’s Republic of China (“Zhongrong Legend”), Ningxia Silkroad equity Investment Partnership Enterprise (Limited Partnership) (“Ningxia Silkroad”), and
Zhengjun Equity Investment Partnership Enterprise (Limited Partnership) (“Zhengjun Investment”), a PRC limited partnership and an affiliate of Ningxia Yilida, entered into an adherence agreement (individually, the “Zhongrong Legend
Adherence Agreement,” the “Ningxia Silkroad Adherence Agreement,” and the “Zhengjun Investment Adherence Agreement”) with the existing Third Consortium Members, pursuant to which each of Zhongrong Legend, Ningxia Silkroad
and Zhengjun Investment became a party to the Third Consortium Agreement and joined the Third Consortium.
Concurrently with the execution
of the Merger Agreement, each of Zhongrong Legend, Ningxia Silkroad and Zhengjun Investment entered into an equity commitment letter (individually, the “Zhongrong Legend Equity Commitment Letter,” the “Ningxia Silkroad Commitment
Letter,” and the “Zhengjun Investment Commitment Letter”) with Capitalhold, pursuant to which each of Zhongrong Legend, Ningxia Silkroad and Zhengjun Investment undertook to fund the transactions contemplated under the Merger
Agreement through cash contributions in Capitalhold from each of them or their affiliates.
Concurrently with the execution of the Merger
Agreement, each of Zhongrong Legend, Ningxia Silkroad and Zhengjun Investment entered into a limited guarantee (individually, the “Zhongrong Legend Limited Guarantee,” the “Ningxia Silkroad Limited Guarantee,” and the
“Zhengjun Investment Limited Guarantee”) in favor of the Issuer with respect to, among other things, a portion of the payment obligations of Capitalhold and Merger Sub corresponding to the cash contributions committed by each of Zhongrong
Legend, Ningxia Silkroad and Zhengjun Investment as set out in their respective equity commitment letters.
On June 25, 2015, in a
privately negotiated transaction, Litian Investment Center (Shanghai) L.P., a limited partnership organized under the laws of the PRC (“Litian”), Orient Zhihui, HuaSung Holdings Limited, a British Virgin Islands company
(“HuaSung”), and Orient Hongzhi entered into a Share Purchase Agreement (the “Litian Share Purchase Agreement”), pursuant to which Litian agreed to acquire the 100% equity interests of HuaSung from Orient Zhihui, which directly
owns the 100% equity interests of HuaSung, which directly owns the 100% equity interests of Orient Hongzhi. The aggregate purchase price paid by Litian for the transaction was RMB 1,705,000,000 (approximately $274,506,329). The transaction closed on
June 30, 2015, and the parties have filed appropriate documentation to obtain governmental approval for the share transfer. As a result, Litian, through HuaSung, beneficially owns 100% of the equity interest of Orient Hongzhi, which directly
owns 61,776,335 Class A Ordinary Shares, which is the sole asset of Orient Hongzhi. Orient Hongzhi is the sole asset of HuaSung.
On
June 25, 2015, in a privately negotiated transaction, Lihua Investment Center (Shanghai) L.P., a limited partnership organized under the laws of the PRC (“Lihua”), Orient Zhisheng, TonSung Holdings Limited, a British Virgins Islands
business company (“TonSung”) and Orient Hongtai entered into a Share Purchase Agreement (the “Lihua Share Purchase Agreement”), pursuant to which Lihua agreed to acquire 100% equity interests of TonSung from Orient Zhisheng,
which directly owns the 100% equity interests of TonSung, which directly owns 100% of the equity interests of Orient Hongtai. The aggregate purchase price paid by Lihua for the transaction is RMB 1,705,000,000 (approximately $274,506,329). The
transaction closed on June 30, 2015, and the parties have filed appropriate documentation to obtain governmental approval for the share transfer. As a result, Lihua, through TonSung, beneficially owns 100% of the equity interest of Orient
Hongtai, which directly owns 61,776,334 Class A Ordinary Shares, which is the sole asset of Orient Hongtai. Orient Hongtai is the sole asset of TonSung.
Liyou Investment Management (Shanghai) Company Limited, a company organized under the laws of the
PRC, and Huatong Holding Group Company Limited, a company organized under the laws of the PRC, are the ordinary general partners of each of Litian and Lihua and have the joint authority to vote and to dispose of the securities owned by Litian and
Lihua, respectively. Orient Capital serves as the administrative general partner of each of Litian and Lihua with no such authority to vote or dispose and, accordingly, it has no beneficial ownership interest in the securities owned by Litian and
Lihua.
If the Merger is completed, the ADSs would be delisted from the NASDAQ Global Select Market and the Issuer’s obligations to
file periodic report under the Exchange Act would be terminated.
In addition, consummation of the Merger could result in one or more of
the actions specified in clauses (a)-(j) of Item 4 of Schedule 13D, including the acquisition or disposition of securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, a change to the Board (as the board
of the surviving company in the Merger) to consist solely of persons to be designated by the Third Consortium Members, and a change in the Issuer’s memorandum and articles of association to reflect that the Issuer would become a privately held
company. No assurance can be given that the Merger will be consummated.
Descriptions of the Initial Consortium Agreement, the Primavera
Share Purchase Agreement, the PW Share Purchase Agreement, the PW Adherence Agreement, the FV Adherence Agreement, the Carlyle Adherence Agreement, the Orient Share Purchase Agreement, the Haitong Share Purchase Agreement I, the Ningxia Share
Purchase Agreement, the Orient Adherence Agreement, the Haitong Adherence Agreement, the Ningxia Adherence Agreement, the Withdrawal Notice, the Primavera Withdrawal Notice, the Haitong Share Purchase Agreement II, the Consent and Release, the
Exclusivity and Release Letter, the SDG Class B Share Purchase Agreement, the Hongtai Share Purchase Agreement, the Hongzhi Share Purchase Agreement the Second Consortium Agreement, the Third Consortium Agreement, the Merger Agreement, the Support
Agreement, the Zhongrong Legend Adherence Agreement, the Ningxia Silkroad Adherence Agreement, the Zhengjun Investment Adherence Agreement, the Zhongrong Legend Equity Commitment Letter, the Ningxia Silkroad Equity Commitment Letter, the Zhengjun
Investment Equity Commitment Letter, the Zhongrong Legend Limited Guarantee, the Ningxia Silkroad Limited Guarantee, the Zhengjun Investment Limited Guarantee, the Litian Share Purchase Agreement, the Lihua Share Purchase Agreement in this Statement
are qualified in their entirety by reference to such above-mentioned agreements, copies of which are filed as Exhibits 7.03, 7.04, 7.05, 7.06, 7.07, 7.08, 7.09, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16,7.17, 7.18, 7.19, 7.20, 7.21, 7.22, 7.23,
7.24, 7.25, 7.26, 7.27, 7.28, 7.29, 7.30, 7.31, 7.32, 7.33, 7.34 and 7.35 hereto and incorporated herein by reference in their entirety.
| Item 5. |
Interest in Securities of the Issuer. |
Item 5(a) – (b) is hereby amended and restated as
follows:
Item 5 is hereby amended and restated as follows:
(a) – (b) As a result of the transactions disclosed herein, the Reporting Persons no longer own any securities of the Company or
have sole or shared power to vote, direct the vote, dispose or direct the disposition with respect to any securities of the Company, and therefore their obligation to file further amendments to this Statement has terminated.
(c) Except as set forth in Item 3 above, the Reporting Persons have not effected any transaction in the Class A Ordinary Shares of
the Company during the past 60 days.
(e) On June 30, 2015, the Reporting Persons ceased to be the beneficial owners of more than five percent of the
Class A Ordinary Shares of the Company as a result of the consummation of the transactions under the Litian Share Purchase Agreement and Lihua Share Purchase Agreement.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer.
Item 6 is hereby amended and restated as follows:
Descriptions of the Initial Consortium Agreement, the Primavera Share Purchase Agreement, the PW Share Purchase Agreement, the PW Adherence
Agreement, the FV Adherence Agreement, the Carlyle Adherence Agreement, the Orient Share Purchase Agreement, the Haitong Share Purchase Agreement I, the Ningxia Share Purchase Agreement, the Orient Adherence Agreement, the Haitong Adherence
Agreement, the Ningxia Adherence Agreement, the Withdrawal Notice, the Primavera Withdrawal Notice, the Haitong Share Purchase Agreement II, the Consent and Release, the Exclusivity and Release Letter, the SDG Class B Share Purchase Agreement, the
Hongtai Share Purchase Agreement, the Hongzhi Share Purchase Agreement, the Second Consortium Agreement, the Third Consortium Agreement, the Merger Agreement, the Support Agreement, the Zhongrong Legend Adherence Agreement, the Ningxia Silkroad
Adherence Agreement, the Zhengjun Investment Adherence Agreement, the Zhongrong Legend Equity Commitment Letter, the Ningxia Silkroad Equity Commitment Letter, the Zhengjun Investment Equity Commitment Letter, the Zhongrong Legend Limited Guarantee,
the Ningxia Silkroad Limited Guarantee, the Zhengjun Investment Limited Guarantee, the Litian Share Purchase Agreement and Lihua Share Purchase Agreement in this Statement under Item 4 are incorporated herein by reference in their entirety.
| Item 7. |
Material to Be Filed as Exhibits. |
Item 7 is hereby amended and supplemented by removing Exhibit
7.01 and adding Exhibits 7.34 and 7.35 to the end thereof:
|
|
|
| Exhibit 7.34 |
|
Litian Share Purchase Agreement dated June 25, 2015 (Translated Version) |
|
|
| Exhibit 7.35 |
|
Lihua Share Purchase Agreement dated June 25, 2015 (Translated Version) |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true,
complete and correct.
Dated: July 1, 2015
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| Orient Finance Holdings (Hong Kong) Limited |
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| By: |
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/s/ Guan Ning |
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Name: |
|
Guan Ning |
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Title: |
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Chief Executive Officer |
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| Orient Zhisheng Investment Center (Shanghai) L.P. |
| By Orient Hongtai Capital Management (Shanghai) Co., Ltd., its general partner |
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| By: |
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/s/ Chen Bo |
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Name: |
|
Chen Bo |
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Title: |
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Director |
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| By Orient Securities Capital Company Limited, its general partner |
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| By: |
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/s/ Jin Wenzhong |
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Name: |
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Jin Wenzhong |
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Title: |
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Chairman |
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| Orient Hongtai Capital Management (Shanghai) Co., Ltd. |
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| By: |
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/s/ Chen Bo |
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Name: |
|
Chen Bo |
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Title: |
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Director |
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| Orient Zhihui Investment Center (Shanghai) L.P. |
| By Orient Hongtai Capital Management (Beijing) Co., Ltd., its general partner |
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| By: |
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/s/ Chen Bo |
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Name: |
|
Chen Bo |
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Title: |
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Director |
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| By Orient Securities Capital Company Limited, its general partner |
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| By: |
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/s/ Jin Wenzhong |
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Name: |
|
Jin Wenzhong |
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Title: |
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Chairman |
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| Orient Hongtai Capital Management (Beijing) Co., Ltd. |
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| By: |
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/s/ Chen Bo |
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Name: |
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Chen Bo |
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Title: |
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Director |
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| Orient Ruide Capital Management (Shanghai) Co., Ltd. |
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| By: |
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/s/ Chen Bo |
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Name: |
|
Chen Bo |
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Title: |
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Director |
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| Orient Securities Capital Company Limited |
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| By: |
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/s/ Jin Wenzhong |
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Name: |
|
Jin Wenzhong |
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Title: |
|
Chairman |
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| Orient Securities Company Limited |
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| By: |
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/s/ Jin Wenzhong |
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Name: |
|
Jin Wenzhong |
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Title: |
|
Chief Executive Officer |
Exhibit 7.34
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this “Agreement”), is entered into by and among the parties listed below on
June 25, 2015, in Shanghai, the People’s Republic of China (“China”).
| (1) |
Litian Investment Center (Shanghai) L.P. (the “Purchaser”), a limited partnership registered and established in Shanghai, China, with its registered address at 55 Xili Road, Room 1513B, 15th Floor, Shanghai Free-Trade Zone, Shanghai, China; |
| (2) |
Orient Zhihui Investment Center (Shanghai) L.P. (the “Seller”), a limited partnership registered and established in Shanghai, China, with its registered address at 26 Jiafeng Road, Room 651, 6th Floor, Shanghai Free-Trade Zone, Shanghai, China; |
| (3) |
Orient Hongzhi (Hong Kong) Limited, a company registered and established in Hong Kong (the “Hong Kong Company”), with its registered address as 100 Queen’s Road, 28, 29 Floor, Central, Hong Kong.
|
| (4) |
HuaSung Holdings Limited, a company registered and established in British Virgin Islands (the “Target Company”), with its registered address at Geneva Place, Waterfront Drive, P.O. Box 3469, Road Town,
Tortola, British Virgin Islands. |
The above parties are sometimes refer to individually as a “Party” and are collectively
referred to herein as the “Parties.”
Whereas:
| (i) |
The Seller holds all of the issued and outstanding capital stock of the Target Company, and the Target Company holds all of the issued and outstanding capital stock of the Hong Kong Company. |
| (ii) |
Shanda Games Limited is a company registered and established in Cayman Islands (“Shanda Games”), and the Hong Kong Company holds 61,776,335 Class A common shares of Shanda Games, which constitutes
11.5% of Shanda Games’ issued and outstanding capital stock. |
| (iii) |
The Purchaser intends to acquire all of the issued and outstanding capital stock of the Target Company from the Seller (the “Target Shares”) for the purpose of (the “Transaction
Purpose”) indirectly acquiring 61,776,335 Class A common shares of Shanda Games (the “Shanda Games Shares”). |
| (iv) |
The Seller intends to transfer all of the equity interest it holds in the Target Company and the Shanda Games Shares it indirectly holds subject to the terms and conditions set forth in this Agreement.
|
Therefore, the Parties to this Agreement agree as follows:
The Seller hereby agrees to transfer to the Purchaser the Target Shares
it holds according to the terms and conditions set forth in this Agreement, and the Purchaser hereby agrees to purchase the Target Shares from the Seller subject to the terms and conditions set forth in this Agreement in order to acquire the Shanda
Games Shares.
| 2.1 |
The consideration for purchasing the Target Shares under this Agreement shall be One Billion Seven Hundred and Five Million (1,705,000,000) RMB (the “Total Consideration”), and the Purchaser shall pay
the Total Consideration to Seller pursuant to this Agreement. |
| 2.2 |
Payment of the Total Consideration |
| |
(a) |
The Purchaser shall make full payment of the Total Consideration within thirty (30) days after the execution of this Agreement. |
| |
(b) |
The amount that the Purchaser shall pay as prescribed in Article 2.2 of this Agreement shall constitute the entire consideration for the Purchaser and its designated party to purchase the Target Shares. The Purchaser
shall have no other obligation to make any additional payment, cost, expense, or any other consideration to the Seller, the Target Company, the Hong Kong Company, and the Seller’s other affiliated parties or any other third parties arising from
the transactions contemplated by this Agreement. |
| 3. |
Seller’s Representations and Arrangements during the Transition Period |
| 3.1 |
From the execution date of this Agreement to the date when the Purchaser directly holds 100% equity interest in the Target Company and indirectly holds the Shanda Games Shares (the “Closing Date”, and
such period, the “Transition Period”), the Seller, the Target Company and the Hong Kong Company shall jointly ensure and warrant that: |
| |
(a) |
Without consent of the Purchaser, neither the Seller, the Target Company nor the Hong Kong Company shall, in any manner, directly or indirectly transfer Shanda Games Shares to any third party who is not the Purchaser.
The Hong Kong Company shall own the Shanda Games Shares free and clear of any share holding entrustment, pledge or other security interests or encumbrances. The Hong Kong Company, when holding the Shanda Games Shares, shall comply with all
applicable laws, by-laws, contracts, agreements or covenants which are binding upon the Hong Kong Company and its shareholders. Except for holding the Shanda Games Shares, the Hong Kong Company shall not conduct any other business. Except for the
investment amount owed to the Target Company, the Hong Kong Company shall not incur any indebtedness or make any investment. |
| |
(b) |
The Target Company shall own all of the issued and outstanding capital stock of the Hong Kong Company free and clear of any share holding entrustment, pledge, security interests or other encumbrances; the Target
Company, when holding the Shanda Games Shares, shall comply with all applicable laws, by-laws, contracts, agreements or covenants which are binding upon the Target Company and its shareholders. Except for holding the shares of the Hong Kong Company,
the Target Company shall not conduct any other business, and shall not create any creditor’s right or indebtedness or make any investment. |
| 3.2 |
During the Transition Period, the Seller, the Target Company, the Hong Kong company and any of their affiliates, officers, directors, representatives or agents shall not engage in any material contact with any party
other than the Purchaser in connection with any similar transactions as prescribed in this Agreement, or make or continue any negotiation, understanding, arrangement or agreement with any other parties in connection therewith. |
| 3.3 |
During the Transition Period the Seller shall immediately inform the Purchaser in writing in the event that the Seller discovers any information related to the Target Company, the Hong Kong Company, or the Target Shares
or Shanda Games Shares is inconsistent with the Seller’s representations, warranties and covenants in this Agreement, or any information that may adversely affect the Transaction Purpose in this Agreement, |
| 4. |
Seller’s Presentations and Obligations |
| 4.1 |
Within ten business days after the Purchaser pays the Total Consideration pursuant to Article 2.2 herein, the Seller, the Target Company and the Hong Kong Company shall: (1) update the registration at the local
registration authority to reflect the Purchase as 100% shareholder of the Target Company; (2) complete all registration changes reflecting resignation of the board members of the Target Company designated by the Purchaser and the change of the
Board of Directors of the Hong Kong Company; (3) provide the Purchaser with certified list of director, certified list of shareholder, the then current certificate of good standing and the then current certificate of incumbency of the Target
Company; (4) provide the Purchaser with certified list of director, the then current certificate of good standing and the then current certificate of incumbency of the Hong Kong Company. If the above procedures can not be completed within the
ten business days period due to reasons not attributable to the Seller, such ten business days shall be extended accordingly. |
| 4.2 |
The Seller shall assist the Purchaser in completing the required change of registration on foreign investment with respect to the acquisition of the Purchaser of all the capital stock of the Target Company held by the
Seller. Furthermore, in order not to affect the consummation of the share transfer provided for herein, the Seller shall cooperate with the Purchaser in making any public disclosure with respect to the transaction in accordance with applicable laws,
provided that the Purchaser shall deliver all necessary materials and executes all necessary documents. |
| 5. |
Representations, Warranties and Covenants |
| 5.1 |
The Seller, the Target Company and the Hong Kong Company acknowledge that the Purchaser’s execution of the Agreement relies on the warranties and representations made by the Seller, the Target Company and the Hong
Kong Company. The Seller, the Target Company and the Hong Kong Company hereby represent, warrant and covenant, jointly and severally, to the Purchaser as follow: |
| |
(a) |
All warranties written in Annex One shall be true, correct and complete as of the execution date of this Agreement and the Closing Date and not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements made therein not misleading. |
| |
(b) |
Except Shengda Games Shares, the Seller, the Target Company and the Hong Kong Company represent and warrant that the Target Company and the Hong Kong Company have no interest in any other companies, enterprises, groups
or investments. Except the investment fund owed by the Hong Kong Company to the Target Company, the Target Company and the Hong Kong Company do not have any indebtedness or encumbrances. On the Closing Date, the Target Company and the Hong Kong
Company do not have any indebtedness or encumbrances. The Seller, the Target Company and the Hong Kong Company further represent and warrant that prior to or upon the execution of this Agreement, the Hong Kong Company shall have fully repaid its
loan owed to Shanghai Bank totaling One Hundred and Six Million Five Hundred Thousand U.S. Dollars ($106,500,000) (including the principal and the interest thereon) and they do not have any outstanding monetary obligations and responsibilities, nor
are they involved in any legal disputes. |
| |
(c) |
Neither any failure nor any delay by the Purchaser in exercising any right under this Agreement with respect to any untrue, misleading, or breached representations or warranties known to the Purchaser will operate as a
waiver of such right, power or privilege. The closing of the transaction shall not constitute any waiver in any manner in connection with the Purchaser’s rights. |
| |
(d) |
Unless provided for herein to the contrary, each warranty is separate and independent, and is not restricted by any other warranties or any other terms herein, nor is it restricted by the inference therefrom.
|
| |
(e) |
The Seller, the Target Company and the Hong Kong Company hereby acknowledge and agree that none of them shall be released from its respective obligations herein due to any false, inaccurate or omitted representation or
advice in connection with any representations or warranties provided or given by the company, its officers, its employees or its consultants. |
| |
(f) |
Each of the Seller, the Target Company and the Hong Kong Company represents and warrant that it shall not breach (or allow or cause to breach) any warranties (if made at the Closing Date) prior to the Closing Date, or
conduct any actions or omissions that make any warranties inaccurate or misleading (if made in that manner). |
| |
(g) |
Notwithstanding the other provisions of the Agreement, each of the Seller, the Target Company and the Hong Kong Company shall pay its income tax in connection with the transaction and in compliance with relevant laws.
|
| 5.2 |
Representations, Warranties and Covenants of the Purchaser |
| |
(a) |
Under the applicable laws, the Purchaser has all necessary corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder. |
| |
(b) |
The execution this Agreement by the representative of the Company has been duly and validly authorized by all necessary corporate action |
| |
(c) |
The execution and performance of this Agreement by the Purchaser will not violate any applicable laws or any decisions, orders, contracts, agreements or other commitments binding upon the Purchaser. |
| |
(d) |
The Purchaser shall use its best effort to assist in obtaining and/or making any necessary approval and/or registration procedures in connection with this Agreement, including providing necessary documents and
materials. |
| 6.1 |
Upon the execution of this Agreement, without limiting the rights of the Purchaser or otherwise affect the Purchaser’s ability to claim for damages based on other grounds, if any warranties is violated (depending
on circumstances) or proved to be untrue or misleading, the Seller, the Target Company and the Hong Kong Company shall jointly and severally pay to the Purchaser: |
| |
(a) |
Necessary payment of monies, to put the Purchaser in the situation as if the warranties had not been violated or (depending on circumstances) the warranties were true and not misleading; and |
| |
(b) |
Any and all costs and expenses in connection with or arising out of the above-mentioned violation, and any and all potential costs (including disbursement of legal fee and its own clients’ legal fee, financial
adviser fee and fees for other professionals), expenses or other responsibilities incurred before or after any of the following actions due to any violations: (i) any legal proceedings brought by the Purchaser claiming that any warranties have
been violated or is untrue or misleading, and the Purchaser prevails; or (ii) enforcement of any settlement or decision in connection with such claim. |
| 6.2 |
Subject to the terms of this Agreement, the Seller, the Target Company and the Hong Kong Company shall jointly and severally indemnify the Purchaser and hold the Purchaser harmless against any loss, indebtedness or cost
(including, but not limited to reasonable legal expenses) it may directly or indirectly suffer due to, as a result of, incurred by or based on the Seller/Hong Kong Company/Target Company’s incompliance with any warranties made herein.
|
| 6.3 |
The Seller, the Target Company and the Hong Kong company hereby severally and jointly, unconditionally, irrevocably, duly and effectively represent and warrant to the Purchaser that, when requested by the Purchaser, the
Seller, the Target Company and the Hong Kong Company will indemnify the Purchaser (depending on circumstances) against any and all damages, loss and liabilities (including, but not limiting to losses resulting from adverse effect on operations)
arising out of the following situations, and at all times ensure the Purchaser receives such indemnification: |
| |
(a) |
Any and all administrative fine or penalty imposed by any competent authority or judicial department upon the Target Company or the Hong Kong Company subsequent to the Closing Date which result from any material
contracts executed by the Target Company or the Hong Kong company prior to the Closing Date that are void or voidable under applicable laws, including, but not limited to damages based on loss of business resulting from such fines, penalties and
denial of market access. |
| |
(b) |
Any obligations and liabilities resulting from any defects or deficiency of any necessary corporate certificate or intellectual property certificate of the Target Company and the Hong Kong Company as of the Closing date
necessary for the business operation of the Target Company under applicable laws, rules and regulations. |
| |
(c) |
Decrease in the asset value resulting from any loss of tax or tax related indebtedness of the Target Company and the Hong Kong Company, or any damages or charges against any member of the Purchaser’s group of
companies resulting from any tax liabilities due to any revenue, profit, or income of the Target Company and the Hong Kong Company on or before the Closing Date, or the action, omission, or any transaction of the Seller, the Target Company or the
Hong Kong Company on or before the Closing Date. |
| |
(d) |
Any damages, loss or liabilities resulting from litigations, arbitrations or other administrative procedures involving the Target Company or the Hong Kong company with a third party due to any events prior to the
Closing Date (except for any proceedings brought by the Purchaser or any counterclaims brought by the defendant in such case). |
| 7.1 |
In the event the Seller does not or refuses to perform its obligations under Article 4.1 and/or Article 4.3 of this Agreement, or delay to perform its obligations under such articles for more than ten (10) business
day after such obligation are due, or there is other fundamental breach on the part of the Seller that frustrates the purpose of this Agreement, the Seller shall be deemed to have committed a fundamental breach of, and the Purchaser shall be
entitled to terminate this Agreement. |
| 8.1 |
If, at any time, the Purchaser discovers any facts, incidents, or events (regardless of whether it exists or occurs at or before the execution of this Agreement, or arises or occurs thereafter) that constitutes any of
the followings, the Purchaser may send a written notice to the Seller, to re-negotiate any terms of this Agreement (including the consideration), or terminate this Agreement: |
| |
(a) |
any material breach of the terms of this Agreement by the Seller, the Target Company or the Hong Kong Company; |
| |
(b) |
any material breach of any warranties herein based upon the then existing facts and circumstances; or |
| |
(c) |
Owning the equity interest of the Hong Kong Company by the Purchaser or owning the equity interest of the Shanda Games Shares have caused or may cause material adverse affect on the Purchaser. |
| 8.2 |
If, at any time, the Seller discovers any facts, incidents, or events (regardless of whether it exists or occurs at or before the execution of this Agreement, or arises or occurs thereafter) that constitutes any of the
followings, the Seller may send a written notice to the Purchaser, to re-negotiate any terms of this Agreement (including the consideration), or terminate this Agreement: |
| |
(a) |
any material breach of the terms of this Agreement by the Purchaser; |
| |
(b) |
any material breach of any warranties herein by the Purchaser, based upon the then existing facts and circumstances. |
| 8.3 |
If this Agreement is terminated according to this Article, there shall be no liability or obligation on the part of any Party; provided that (a) any such termination shall not relieve any party from liability for
obligations which exist prior to this Agreement or shall survive the termination of this Agreement pursuant to the terms of this Agreement. |
| 9. |
Governing Laws and Dispute Resolution |
This agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
Disputes referred to in this Article means any dispute as to the validity,
interpretation, enforceability, or breach of this Agreement and any disputes as to the change, recession, or termination of this Agreement. In the event of any dispute arising out of or in any way connected with this Agreement, the Parties shall
endeavor to resolve the matter through friendly negotiation. In case no settlement is reached, the dispute shall be submitted to Shanghai International Economic and Trade Arbitration Commission for arbitration in accordance with its rules in effect
at the time of applying for arbitration. The place of arbitration shall be Shanghai, China. The decision of the commission shall be final and binding upon all parties.
All notices, consents, requests, instructions, and other communications hereunder will
be in writing and shall be deemed duly sent, made and given: (a) upon receipt if delivered personally; (b) 48 hours following the date mailed when mailed by registered or certified mail, postage prepaid (72 hours following the date mailed
when mailed to a foreign address by registered air mail); (c) when sent by reputable courier and (d) when sent by fax, at the following addresses:
If to the Seller, the Target Company and the Hong Kong Company:
|
|
|
| Address: |
|
F36, Building 2, Oriental International Financial Plaza, 318 Zhongshan South Road, Huangpu District, Shanghai |
| Attention: |
|
Yuntao Ma |
| Email: |
|
mayuntao@126.com |
If to the Purchaser:
|
|
|
| Address: |
|
Beiyi Road, Economic Development District, Shangyu, Zhejiang |
| Attention: |
|
Zhengshan Yan |
| Fax: |
|
86-575-82208079 |
The Seller, the Target Company and the Hong Kong Company shall be jointly
liable for any and all obligations of this Agreement.
Except specifically provided for in this Agreement, each Party shall pay its own
tax, fees of attorneys, accountants, financial advisors, appraisers, technical experts and other similar fees. Fees not expressly provided for by applicable laws shall be borne equally by the Seller and the Purchaser.
| 10.4 |
Publicity and Confidentiality |
The Parties to this Agreement agree that the existence and
content of this Agreement and any trade secret, proprietary information or customer information of the Parties disclosed during the negotiation, execution or performance of the Agreement and any other relevant information or non-public information
of any parties (“Confidential Information”) shall be kept in strict confidence. Any notices sent to a third party or other expected publicity and promotion in connection with this Agreement, shall be jointly planned and coordinated
by the Seller, the Target Company, the Hong Kong and the Purchaser (except in the event a Party hereto is required to make disclosure to any regulatory body, securities exchange, other government body or professional advisor). Without the prior
written consent of the other Party, neither Party shall disclose any Confidential Information. The Parties agree to cooperate with the other Parties in compliance with all applicable laws.
Not exercising or delay in exercising any powers, rights or privileges hereunder by
any Party does not constitute a waiver thereof. Exercising one of or partially exercising any of such powers, rights or privileges does not exclude exercise of or further exercise of those powers, rights or privileges or of any other powers, rights
or privileges.
If any term of this Agreement is found to be invalid or unenforceable, unless
such invalidity or unenforceability violates the intent or other terms of this Agreement, it cannot affect the validity and enforceability of any other terms of this Agreement; provided that, the term found invalid or unenforceable does not
constitute an undividable part of this Agreement, or that it cannot be definitely separated. Such invalidity or unenforceability shall not affect the validity and enforceability of any other terms of this Agreement, and each of these terms shall be
regarded as valid, enforceable, concluded or adopted in the manners and to the extent permitted by law.
This Agreement is written in Chinese and may be executed by the Parties in
counterparts, each of which shall be deemed to be an original and binding upon all Parties.
[the remainder of this page is left blank
intentionally]
IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement as of the date first above set forth.
|
| SELLER: |
| ORIENT ZHIHUI INVESTMENT CENTER (SHANGHAI) L.P. |
| (SEAL) |
|
| /s/ Bo Chen |
| AUTHORIZED REPRESENTATIVE: BO CHEN |
|
| TARGET COMPANY: |
| HuaSung Holdings Limited |
|
| /s/ Yuntao Ma |
| AUTHORIZED REPRESENTATIVE: YUNTAO MA |
|
| HONG KONG COMPANY: |
| ORIENT HONGZHI (HONG KONG) LIMITED |
|
| /s/ Yuntao Ma |
| AUTHORIZED REPRESENTATIVE: YUNTAO MA |
|
| PURCHASER: |
| Litian Investment Center (Shanghai) L.P. |
| (SEAL) |
|
| /s/ Bo Chen |
| AUTHORIZED REPRESENTATIVE: BO CHEN |
Annex 1
Warranties
The Seller, the Target
Company and the Hong Kong Company hereby, jointly and severally, warrant, represent and covenant to the Purchaser, and these representations, warranties and covenants take effect on and continue onwards from the date of execution of this Stock
Purchase Agreement.
| |
(1) |
Target Shares constitute 100% of all of the issued and outstanding equity interest of the Target Company. The Target Shares have been fully paid and such payment is in compliance with the relevant provisions of laws and
regulations of the People’s Republic of China. The Seller has subscribed the Target Company’s shares at a price in excess of the capital contribution amount recorded by the recordation of overseas investment projects. |
| |
(2) |
The Seller beneficially owns the Target Shares and has the right to dispose of the Target Shares, including selling and transferring the full legal right and beneficial ownership of the Target Shares to the Purchaser.
|
| |
(3) |
The Target Shares are free and clear of any and all preemptive right, right of first refusal, mortgages, charge, pledges, liens or other kinds of mortgage, pledge or property encumbrances, are not affected by such
encumbrances, and no agreement or covenant providing or creating such encumbrances has been made. |
| 2. |
Shares of the Hong Kong Company |
| |
(1) |
The Target Company owns 100% shares of all of the issued and outstanding shares of the Hong Kong Company, and the Target Company’s capital contribution has been fully paid. |
| |
(2) |
The Target Company beneficially owns shares of the Hong Kong Company, and has the right to dispose of the Target Shares, including selling and transferring the full legal right and beneficial ownership of the Target
Shares to the Purchaser. |
| |
(3) |
Shares of the Hong Kong Company are free and clear of any and all preemptive right, right of first refusal, mortgage, charge, pledge, lien or other kinds of mortgage, pledge or property encumbrances, are not affected by
such encumbrances, and no agreement or covenant providing or creating such encumbrances has been made. |
| |
(1) |
The Shanda Games Shares owned by the Hong Kong Company represent 11.5% of all of the issued and outstanding capital stock of Shanda Games, and the Hong Kong Company’s capital contribution has been fully paid.
|
| |
(2) |
The Hong Kong Company beneficially owns the Shanda Games Shares, and has the right to dispose of the Shanda Games Shares, including selling and transferring the full legal right and beneficial ownership of the Shanda
Games Shares to the Purchaser. |
| |
(3) |
Shanda Games Shares owned by the Hong Kong Company are free and clear of any and all preemptive right, right of first refusal, mortgage, charge, pledge, lien or other kinds of mortgage, pledge or property encumbrance,
are not affected by such encumbrances, and no agreement or covenant providing or creating these encumbrances has been made. |
| |
(1) |
The Seller is a limited partnership duly organized and validly existing under the laws of the People’s Republic of China, and has the full capacity to execute on its own behalf and perform this Agreement according
to the applicable laws. |
| |
(2) |
All obligations of the Seller in this Agreement are legal, valid and binding. |
| |
(3) |
Neither execution nor performance of this Agreement by the Seller will conflict with or result in a breach or violation of any term or provision of any relevant law, requirement, agreement, or regulation, or any
contracts or obligations binding upon the Seller or any of its assets. |
| |
(1) |
The Target Company is a limited company duly organized and validly existing under the laws of the place of registration, and has the full capacity to execute on its own behalf and perform this Agreement according to the
applicable laws. |
| |
(2) |
All obligations of the Target Company in this Agreement are legal, valid and binding. |
| |
(3) |
Neither execution nor performance of this Agreement by the Target Company will conflict with or result in a breach or violation of any term or provision of any law, requirement, agreement, regulation, or any contracts
or obligations binding upon the Target Company or any of its assets. |
| |
(1) |
The Hong Kong Company is a limited company duly organized and validly existing under the laws of the place of registration, and has the full capacity to execute on its own behalf and perform this Agreement according to
the applicable laws. |
| |
(2) |
All obligations of the Hong Kong Company in this Agreement are legal, valid and binding. |
| |
(3) |
Neither execution nor performance of this Agreement by Hong Kong Company will conflict with or result in a breach or violation of any term or provision of any law, requirement, agreement, regulation, or any contracts or
obligations binding upon the Hong Kong Company or any of its assets. |
| 7. |
Accurate and adequate documents |
| |
(1) |
The Seller, the Target Company and the Hong Kong Company have submitted all documents and information that are relevant to this transaction, and those about the Target Shares, the shares of the Hong Kong Company and the
Shanda Games Shares that may affect the Purchaser’s judgment. |
| |
(2) |
Any information in this Agreement (including representations) and all documents, data and information provided by the Seller, the Target Company and the Hong Kong Company to the Purchaser are true, accurate and not
misleading in all respects at any time. |
| 8. |
Compliance with Statutory Requirements |
Since its formation, both the Target Company or
the Hong Kong Company have complied with all the applicable laws, rules and regulations without any violation.
Except for the debts the Hong Kong Company owes to the Target Company,
there is no debt or liability (including existing debts and contingent debts created by warranty, pledge or other forms of guaranty by the Target Company or the Hong Kong Company) between the Target Company and the Hong Kong Company or any payment,
tax, fee, expense or cost which shall be paid to a third party.
| 10. |
All representations and warranties stated above in this attachment shall be deemed as representations and warranties based on the then existing facts made on the date immediately following the Closing Date.
|
[the remainder of this page is left blank intentionally]
Exhibit 7.35
SHARE PURCHASE AGREEMENT
THIS
SHARE PURCHASE AGREEMENT (this “Agreement”), is entered into by and among the parties listed below on June 25, 2015, in Shanghai, the People’s Republic of China (“China”).
(1) Lihua Investment Center (Shanghai) L.P. (the “Purchaser”), a limited partnership registered and established in Shanghai,
China, with its registered address at 55 Xili Road, Room 1545A, 15th Floor, Shanghai Free-Trade Zone, Shanghai, China;
(2) Orient Zhisheng Investment Center (Shanghai) L.P. (the “Seller”), a limited partnership registered and established in
Shanghai, China, with its registered address at 26 Jiafeng Road, Room 649, 6th Floor, Shanghai Free-Trade Zone, Shanghai, China;
(3) Orient Hongtai (Hong Kong) Limited, a company registered and established in Hong Kong (the “Hong Kong Company”), with its
registered address as 90-92 Jaffe Road, Henan Building, 19th Floor, Room 2, Wanchai, Hong Kong.
(4) TonSung Holdings Limited, a company registered and established in British Virgin Islands (the “Target Company”), with its
registered address at Geneva Place, Waterfront Drive, P.O. Box 3469, Road Town, Tortola, British Virgin Islands.
The above parties are
sometimes refer to individually as a “Party” and are collectively referred to herein as the “Parties.”
Whereas:
(i) The
Seller holds all of the issued and outstanding capital stock of the Target Company, and the Target Company holds all of the issued and outstanding capital stock of the Hong Kong Company.
(ii) Shanda Games Limited is a company registered and established in Cayman Islands
(“Shanda Games”), and the Hong Kong Company holds 61,776,334 Class A common shares of Shanda Games, which constitutes 11.5% of Shanda Games’ issued and outstanding capital stock.
(iii) The Purchaser intends to acquire all of the issued and outstanding capital stock of the Target Company from the Seller (the
“Target Shares”) for the purpose of (the “Transaction Purpose”) indirectly acquiring 61,776,334 Class A common shares of Shanda Games (the “Shanda Games Shares”).
(iv) The Seller intends to transfer all of the equity interest it holds in the Target Company and the Shanda Games Shares it indirectly holds
subject to the terms and conditions set forth in this Agreement.
Therefore, the Parties to this Agreement agree as follows:
The Seller hereby agrees to transfer to the Purchaser
the Target Shares it holds according to the terms and conditions set forth in this Agreement, and the Purchaser hereby agrees to purchase the Target Shares from the Seller subject to the terms and conditions set forth in this Agreement in order to
acquire the Shanda Games Shares.
2.1 The consideration for purchasing the Target Shares under this
Agreement shall be One Billion Seven Hundred and Five Million (1,705,000,000) RMB (the “Total Consideration”), and the Purchaser shall pay the Total Consideration to Seller pursuant to this Agreement.
2.2 Payment of the Total Consideration
| |
(a) |
The Purchaser shall make full payment of the Total Consideration within thirty (30) days after the execution of this Agreement. |
| |
(b) |
The amount that the Purchaser shall pay as prescribed in Article 2.2 of this Agreement shall constitute the entire consideration for the Purchaser and its designated party to purchase the Target Shares. The Purchaser
shall have no other obligation to make any additional payment, cost, expense, or any other consideration to the Seller, the Target Company, the Hong Kong Company, and the Seller’s other affiliated parties or any other third parties arising from
the transactions contemplated by this Agreement. |
| 3. |
Seller’s Representations and Arrangements during the Transition Period |
3.1 From
the execution date of this Agreement to the date when the Purchaser directly holds 100% equity interest in the Target Company and indirectly holds the Shanda Games Shares (the “Closing Date”, and such period, the “Transition
Period”), the Seller, the Target Company and the Hong Kong Company shall jointly ensure and warrant that:
| |
(a) |
Without consent of the Purchaser, neither the Seller, the Target Company nor the Hong Kong Company shall, in any manner, directly or indirectly transfer Shanda Games Shares to any third party who is not the Purchaser.
The Hong Kong Company shall own the Shanda Games Shares free and clear of any share holding entrustment, pledge or other security interests or encumbrances. The Hong Kong Company, when holding the Shanda Games Shares, shall comply with all
applicable laws, by-laws, contracts, agreements or covenants which are binding upon the Hong Kong Company and its shareholders. Except for holding the Shanda Games Shares, the Hong Kong Company shall not conduct any other business. Except for the
investment amount owed to the Target Company, the Hong Kong Company shall not incur any indebtedness or make any investment. |
| |
(b) |
The Target Company shall own all of the issued and outstanding capital stock of the Hong Kong Company free and clear of any share holding entrustment, pledge, security interests or other encumbrances; the Target
Company, when holding the Shanda Games Shares, shall comply with all applicable laws, by-laws, contracts, agreements or covenants which are binding upon the Target Company and its shareholders. Except for holding the shares of the Hong Kong Company,
the Target Company shall not conduct any other business, and shall not create any creditor’s right or indebtedness or make any investment. |
3.2 During the Transition Period, the Seller, the Target Company, the Hong Kong company and any
of their affiliates, officers, directors, representatives or agents shall not engage in any material contact with any party other than the Purchaser in connection with any similar transactions as prescribed in this Agreement, or make or continue any
negotiation, understanding, arrangement or agreement with any other parties in connection therewith.
3.3 During the Transition Period the
Seller shall immediately inform the Purchaser in writing in the event that the Seller discovers any information related to the Target Company, the Hong Kong Company, or the Target Shares or Shanda Games Shares is inconsistent with the Seller’s
representations, warranties and covenants in this Agreement, or any information that may adversely affect the Transaction Purpose in this Agreement,
| 4. |
Seller’s Presentations and Obligations |
| 4.1 |
Within ten business days after the Purchaser pays the Total Consideration pursuant to Article 2.2 herein, the Seller, the Target Company and the Hong Kong Company shall: (1) update the registration at the local
registration authority to reflect the Purchase as 100% shareholder of the Target Company; (2) complete all registration changes reflecting resignation of the board members of the Target Company designated by the Purchaser and the change of the Board
of Directors of the Hong Kong Company; (3) provide the Purchaser with certified list of director, certified list of shareholder, the then current certificate of good standing and the then current certificate of incumbency of the Target Company; (4)
provide the Purchaser with certified list of director, the then current certificate of good standing and the then current certificate of incumbency of the Hong Kong Company. If the above procedures can not be completed within the ten business days
period due to reasons not attributable to the Seller, such ten business days shall be extended accordingly. |
| 4.2 |
The Seller shall assist the Purchaser in completing the required change of registration on foreign investment with respect to the acquisition of the Purchaser of all the capital stock of the Target Company held by the
Seller. Furthermore, in order not to affect the consummation of the share transfer provided for herein, the Seller shall cooperate with the Purchaser in making any public disclosure with respect to the transaction in accordance with applicable laws,
provided that the Purchaser shall deliver all necessary materials and executes all necessary documents. |
| 5. |
Representations, Warranties and Covenants |
| 5.1 |
The Seller, the Target Company and the Hong Kong Company acknowledge that the Purchaser’s execution of the Agreement relies on the warranties and representations made by the Seller, the Target Company and the Hong
Kong Company. The Seller, the Target Company and the Hong Kong Company hereby represent, warrant and covenant, jointly and severally, to the Purchaser as follow: |
| |
(a) |
All warranties written in Annex One shall be true, correct and complete as of the execution date of this Agreement and the Closing Date and not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements made therein not misleading. |
| |
(b) |
Except Shengda Games Shares, the Seller, the Target Company and the Hong Kong Company represent and warrant that the Target Company and the Hong Kong Company have no interest in any other companies, enterprises, groups
or investments. Except the investment fund owed by the Hong Kong Company to the Target Company, the Target Company and the Hong Kong Company do not have any indebtedness or encumbrances. On the Closing Date, the Target Company and the Hong Kong
Company do not have any indebtedness or encumbrances. The Seller, the Target Company and the Hong Kong Company further represent and warrant that prior to or upon the execution of this Agreement, the Hong Kong Company shall have fully repaid its
loan owed to Shanghai Bank totaling One Hundred and Six Million Five Hundred Thousand U.S. Dollars ($106,500,000) (including the principal and the interest thereon) and they do not have any outstanding monetary obligations and responsibilities, nor
are they involved in any legal disputes. |
| |
(c) |
Neither any failure nor any delay by the Purchaser in exercising any right under this Agreement with respect to any untrue, misleading, or breached representations or warranties known to the Purchaser will operate as a
waiver of such right, power or privilege. The closing of the transaction shall not constitute any waiver in any manner in connection with the Purchaser’s rights. |
| |
(d) |
Unless provided for herein to the contrary, each warranty is separate and independent, and is not restricted by any other warranties or any other terms herein, nor is it restricted by the inference therefrom.
|
| |
(e) |
The Seller, the Target Company and the Hong Kong Company hereby acknowledge and agree that none of them shall be released from its respective obligations herein due to any false, inaccurate or omitted representation or
advice in connection with any representations or warranties provided or given by the company, its officers, its employees or its consultants. |
| |
(f) |
Each of the Seller, the Target Company and the Hong Kong Company represents and warrant that it shall not breach (or allow or cause to breach) any warranties (if made at the Closing Date) prior to the Closing Date, or
conduct any actions or omissions that make any warranties inaccurate or misleading (if made in that manner). |
| |
(g) |
Notwithstanding the other provisions of the Agreement, each of the Seller, the Target Company and the Hong Kong Company shall pay its income tax in connection with the transaction and in compliance with relevant laws.
|
| 5.2 |
Representations, Warranties and Covenants of the Purchaser |
| |
(a) |
Under the applicable laws, the Purchaser has all necessary corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder . |
| |
(b) |
The execution this Agreement by the representative of the Company has been duly and validly authorized by all necessary corporate action. |
| |
(c) |
The execution and performance of this Agreement by the Purchaser will not violate any applicable laws or any decisions, orders, contracts, agreements or other commitments binding upon the Purchaser. |
| |
(d) |
The Purchaser shall use its best effort to assist in obtaining and/or making any necessary approval and/or registration procedures in connection with this Agreement, including providing necessary documents and
materials. |
| 6.1 |
Upon the execution of this Agreement, without limiting the rights of the Purchaser or otherwise affect the Purchaser’s ability to claim for damages based on other grounds, if any warranties is violated (depending
on circumstances) or proved to be untrue or misleading, the Seller, the Target Company and the Hong Kong Company shall jointly and severally pay to the Purchaser: |
| |
(a) |
Necessary payment of monies, to put the Purchaser in the situation as if the warranties had not been violated or (depending on circumstances) the warranties were true and not misleading; and |
| |
(b) |
Any and all costs and expenses in connection with or arising out of the above-mentioned violation, and any and all potential costs (including disbursement of legal fee and its own clients’ legal fee, financial
adviser fee and fees for other professionals), expenses or other responsibilities incurred before or after any of the following actions due to any violations: (i) any legal proceedings brought by the Purchaser claiming that any warranties have been
violated or is untrue or misleading, and the Purchaser prevails; or (ii) enforcement of any settlement or decision in connection with such claim. |
| 6.2 |
Subject to the terms of this Agreement, the Seller, the Target Company and the Hong Kong Company shall jointly and severally indemnify the Purchaser and hold the Purchaser harmless against any loss, indebtedness or cost
(including, but not limited to reasonable legal expenses) it may directly or indirectly suffer due to, as a result of, incurred by or based on the Seller/Hong Kong Company/Target Company’s in compliance with any warranties made herein.
|
| 6.3 |
The Seller, the Target Company and the Hong Kong company hereby severally and jointly, unconditionally, irrevocably, duly and effectively represent and warrant to the Purchaser that, when requested by the Purchaser, the
Seller, the Target Company and the Hong Kong Company will indemnify the Purchaser (depending on circumstances) against any and all damages, loss and liabilities (including, but not limiting to losses resulting from adverse effect on operations)
arising out of the following situations, and at all times ensure the Purchaser receives such indemnification: |
| |
(a) |
Any and all administrative fine or penalty imposed by any competent authority or judicial department upon the Target Company or the Hong Kong Company subsequent to the Closing Date which result from any material
contracts executed by the Target Company or the Hong Kong company prior to the Closing Date that are void or voidable under applicable laws, including, but not limited to damages based on loss of business resulting from such fines, penalties and
denial of market access. |
| |
(b) |
Any obligations and liabilities resulting from any defects or deficiency of any necessary corporate certificate or intellectual property certificate of the Target Company and the Hong Kong Company as of the Closing date
necessary for the business operation of the Target Company under applicable laws, rules and regulations. |
| |
(c) |
Decrease in the asset value resulting from any loss of tax or tax related indebtedness of the Target Company and the Hong Kong Company, or any damages or charges against any member of the Purchaser’s group of
companies resulting from any tax liabilities due to any revenue, profit, or income of the Target Company and the Hong Kong Company on or before the Closing Date, or the action, omission, or any transaction of the Seller, the Target Company or the
Hong Kong Company on or before the Closing Date. |
| |
(d) |
Any damages, loss or liabilities resulting from litigations, arbitrations or other administrative procedures involving the Target Company or the Hong Kong company with a third party due to any events prior to the
Closing Date (except for any proceedings brought by the Purchaser or any counterclaims brought by the defendant in such case). |
| 7.1 |
In the event the Seller does not or refuses to perform its obligations under Article 4.1 and/or Article 4.3 of this Agreement, or delay to perform its obligations under such articles for more than ten (10) business day
after such obligation are due, or there is other fundamental breach on the part of the Seller that frustrates the purpose of this Agreement, the Seller shall be deemed to have committed a fundamental breach of, and the Purchaser shall be entitled to
terminate this Agreement. |
| 8.1 |
If, at any time, the Purchaser discovers any facts, incidents, or events (regardless of whether it exists or occurs at or before the execution of this Agreement, or arises or occurs thereafter) that constitutes any of
the followings, the Purchaser may send a written notice to the Seller, to re-negotiate any terms of this Agreement (including the consideration), or terminate this Agreement: |
| |
(a) |
any material breach of the terms of this Agreement by the Seller, the Target Company or the Hong Kong Company; |
| |
(b) |
any material breach of any warranties herein based upon the then existing facts and circumstances ; or |
| |
(c) |
Owning the equity interest of the Hong Kong Company by the Purchaser or owning the equity interest of the Shanda Games Shares have caused or may cause material adverse affect on the Purchaser. |
| 8.2 |
If, at any time, the Seller discovers any facts, incidents, or events (regardless of whether it exists or occurs at or before the execution of this Agreement, or arises or occurs thereafter) that constitutes any of the
followings, the Seller may send a written notice to the Purchaser, to re-negotiate any terms of this Agreement (including the consideration), or terminate this Agreement: |
| |
(a) |
any material breach of the terms of this Agreement by the Purchaser; |
| |
(b) |
any material breach of any warranties herein by the Purchaser, based upon the then existing facts and circumstances. |
| 8.3 |
If this Agreement is terminated according to this Article, there shall be no liability or obligation on the part of any Party; provided that (a) any such termination shall not relieve any party from liability for
obligations which exist prior to this Agreement or shall survive the termination of this Agreement pursuant to the terms of this Agreement. |
| 9. |
Governing Laws and Dispute Resolution |
This agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
Disputes referred to in this Article means any dispute as to the validity,
interpretation, enforceability, or breach of this Agreement and any disputes as to the change, recession, or termination of this Agreement. In the event of any dispute arising out of or in any way connected with this Agreement, the Parties shall
endeavor to resolve the matter through friendly negotiation. In case no settlement is reached, the dispute shall be submitted to Shanghai International Economic and Trade Arbitration Commission for arbitration in accordance with its rules in effect
at the time of applying for arbitration. The place of arbitration shall be Shanghai, China. The decision of the commission shall be final and binding upon all parties.
All notices, consents, requests, instructions, and other communications hereunder will
be in writing and shall be deemed duly sent, made and given: (a) upon receipt if delivered personally; (b) 48 hours following the date mailed when mailed by registered or certified mail, postage prepaid (72 hours following the date mailed when
mailed to a foreign address by registered air mail); (c) when sent by reputable courier and (d) when sent by fax, at the following addresses:
If to the Seller, the Target Company and the Hong Kong Company:
|
|
|
| Address: |
|
F36, Building 2, Oriental International Financial Plaza, 318 Zhongshan South Road, Huangpu District, Shanghai |
| Attention: |
|
Yuntao Ma |
| Telephone: |
|
18601279022 |
| Email: |
|
mayuntao@126.com |
If to the Purchaser:
|
|
|
| Address: |
|
Beiyi Road, Economic Development District, Shangyu, Zhejiang |
| Attention: |
|
Zhengshan Yan |
| Telephone: |
|
13705753506 |
| Fax: |
|
86-575-82208079 |
The Seller, the Target Company and the Hong Kong Company shall be jointly
liable for any and all obligations of this Agreement.
Except specifically provided for in this Agreement, each Party shall pay its own
tax, fees of attorneys, accountants, financial advisors, appraisers, technical experts and other similar fees. Fees not expressly provided for by applicable laws shall be borne equally by the Seller and the Purchaser.
| 10.4 |
Publicity and Confidentiality |
The Parties to this Agreement agree that the existence and
content of this Agreement and any trade secret, proprietary information or customer information of the Parties disclosed during the negotiation, execution or performance of the Agreement and any other relevant information or non-public information
of any parties (“Confidential Information”) shall be kept in strict confidence. Any notices sent to a third party or other expected publicity and promotion in connection with this Agreement, shall be jointly planned and coordinated
by the Seller, the Target Company, the Hong Kong Company and the Purchaser (except in the event a Party hereto is required to make disclosure to any regulatory body, securities exchange, other government body or professional advisor). Without the
prior written consent of the other Party, neither Party shall disclose any Confidential Information. The Parties agree to cooperate with the other Parties in compliance with all applicable laws.
Not exercising or delay in exercising any powers, rights or privileges hereunder by
any Party does not constitute a waiver thereof. Exercising one of or partially exercising any of such powers, rights or privileges does not exclude exercise of or further exercise of those powers, rights or privileges or of any other powers, rights
or privileges.
If any term of this Agreement is found to be invalid or unenforceable, unless
such invalidity or unenforceability violates the intent or other terms of this Agreement, it cannot affect the validity and enforceability of any other terms of this Agreement; provided that, the term found invalid or unenforceable does not
constitute an undividable part of this Agreement, or that it cannot be definitely separated. Such invalidity or unenforceability shall not affect the validity and enforceability of any other terms of this Agreement, and each of these terms shall be
regarded as valid, enforceable, concluded or adopted in the manners and to the extent permitted by law.
This Agreement is written in Chinese and may be executed by the Parties in
counterparts, each of which shall be deemed to be an original and binding upon all Parties.
[the remainder of this page is left blank
intentionally]
IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement as of the date first above set forth.
|
| SELLER: |
| ORIENT ZHISHENG INVESTMENT CENTER (SHANGHAI) L.P. |
| (SEAL) |
|
| /s/ Bo Chen |
| AUTHORIZED REPRESENTATIVE: BO CHEN |
|
| TARGET COMPANY: |
| TonSung Holdings Limited |
|
| /s/ Yuntao Ma |
| AUTHORIZED REPRESENTATIVE: YUNTAO MA |
|
| HONG KONG COMPANY: |
| ORIENT HONGTAI (HONG KONG) LIMITED |
|
| /s/ Yuntao Ma |
| AUTHORIZED REPRESENTATIVE: YUNTAO MA |
|
| PURCHASER: |
| Lihua Investment Center (Shanghai) L.P. |
| (SEAL) |
|
| /s/ Bo Chen |
| AUTHORIZED REPRESENTATIVE: BO CHEN |
Annex 1
Warranties
The Seller, the Target
Company and the Hong Kong Company hereby, jointly and severally, warrant, represent and covenant to the Purchaser, and these representations, warranties and covenants take effect on and continue onwards from the date of execution of this Stock
Purchase Agreement.
| |
(1) |
Target Shares constitute 100% of all of the issued and outstanding equity interest of the Target Company. The Target Shares have been fully paid and such payment is in compliance with the relevant provisions of laws and
regulations of the People’s Republic of China. The Seller has subscribed the Target Company’s shares at a price in excess of the capital contribution amount recorded by the recordation of overseas investment projects. |
| |
(2) |
The Seller beneficially owns the Target Shares and has the right to dispose of the Target Shares, including selling and transferring the full legal right and beneficial ownership of the Target Shares to the Purchaser.
|
| |
(3) |
The Target Shares are free and clear of any and all preemptive right, right of first refusal, mortgages, charge, pledges, liens or other kinds of mortgage, pledge or property encumbrances, are not affected by such
encumbrances, and no agreement or covenant providing or creating such encumbrances has been made. |
| 2. |
Shares of the Hong Kong Company |
| |
(1) |
The Target Company owns 100% shares of all of the issued and outstanding shares of the Hong Kong Company, and the Target Company’s capital contribution has been fully paid. |
| |
(2) |
The Target Company beneficially owns shares of the Hong Kong Company, and has the right to dispose of the Target Shares, including selling and transferring the full legal right and beneficial ownership of the Target
Shares to the Purchaser. |
| |
(3) |
Shares of the Hong Kong Company are free and clear of any and all preemptive right, right of first refusal, mortgage, charge, pledge, lien or other kinds of mortgage, pledge or property encumbrances, are not affected by
such encumbrances, and no agreement or covenant providing or creating such encumbrances has been made. |
| |
(1) |
The Shanda Games Shares owned by the Hong Kong Company represent 11.5% of all of the issued and outstanding capital stock of Shanda Games, and the Hong Kong Company’s capital contribution has been fully paid.
|
| |
(2) |
The Hong Kong Company beneficially owns the Shanda Games Shares, and has the right to dispose of the Shanda Games Shares, including selling and transferring the full legal right and beneficial ownership of the Shanda
Games Shares to the Purchaser. |
| |
(3) |
Shanda Games Shares owned by the Hong Kong Company are free and clear of any and all preemptive right, right of first refusal, mortgage, charge, pledge, lien or other kinds of mortgage, pledge or property encumbrance,
are not affected by such encumbrances, and no agreement or covenant providing or creating these encumbrances has been made. |
| |
(1) |
The Seller is a limited partnership duly organized and validly existing under the laws of the People’s Republic of China, and has the full capacity to execute on its own behalf and perform this Agreement according
to the applicable laws. |
| |
(2) |
All obligations of the Seller in this Agreement are legal, valid and binding. |
| |
(3) |
Neither execution nor performance of this Agreement by the Seller will conflict with or result in a breach or violation of any term or provision of any relevant law, requirement, agreement, or regulation, or any
contracts or obligations binding upon the Seller or any of its assets. |
| |
(1) |
The Target Company is a limited company duly organized and validly existing under the laws of the place of registration, and has the full capacity to execute on its own behalf and perform this Agreement according to the
applicable laws. |
| |
(2) |
All obligations of the Target Company in this Agreement are legal, valid and binding. |
| |
(3) |
Neither execution nor performance of this Agreement by the Target Company will conflict with or result in a breach or violation of any term or provision of any law, requirement, agreement, regulation, or any contracts
or obligations binding upon the Target Company or any of its assets. |
| |
(1) |
The Hong Kong Company is a limited company duly organized and validly existing under the laws of the place of registration, and has the full capacity to execute on its own behalf and perform this Agreement according to
the applicable laws. |
| |
(2) |
All obligations of the Hong Kong Company in this Agreement are legal, valid and binding. |
| |
(3) |
Neither execution nor performance of this Agreement by Hong Kong Company will conflict with or result in a breach or violation of any term or provision of any law, requirement, agreement, regulation, or any contracts or
obligations binding upon the Hong Kong Company or any of its assets. |
| 7. |
Accurate and adequate documents |
| |
(1) |
The Seller, the Target Company and the Hong Kong Company have submitted all documents and information that are relevant to this transaction, and those about the Target Shares, the shares of the Hong Kong Company and the
Shanda Games Shares that may affect the Purchaser’s judgment. |
| |
(2) |
Any information in this Agreement (including representations) and all documents, data and information provided by the Seller, the Target Company and the Hong Kong Company to the Purchaser are true, accurate and not
misleading in all respects at any time. |
| 8. |
Compliance with Statutory Requirements |
Since its formation, both the Target Company or
the Hong Kong Company have complied with all the applicable laws, rules and regulations without any violation.
Except for the debts the Hong Kong Company owes to the Target Company,
there is no debt or liability (including existing debts and contingent debts created by warranty, pledge or other forms of guaranty by the Target Company or the Hong Kong Company) between the Target Company and the Hong Kong Company or any payment,
tax, fee, expense or cost which shall be paid to a third party.
| 10. |
All representations and warranties stated above in this attachment shall be deemed as representations and warranties based on the then existing facts made on the date immediately following the Closing Date.
|
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