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Signed
)
for and on behalf of
)
By:
/s/ Timothy Alexander Steinert
ALI JK NUTRITIONAL PRODUCTS
)
Name:
Timothy Alexander Steinert
HOLDING LIMITED
)
Title:
Authorized Signatory
Signature page to share purchase agreement of Ali JK Nutritional Products Holding Limited
Exhibit 4.41
Execution Version
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT is made and entered into as of July 16, 2018 (the “ Effective Date ”) by and among:
(1) Alibaba Investment Limited , a company incorporated under the laws of the British Virgin Islands (the “ Purchaser 1 ”);
(2) New Retail Strategic Opportunities Fund, L.P. , a limited partnership established under the laws of the Cayman Islands (the “ Purchaser 2 ”); and
(3) Giovanna Investment Cayman Limited , a company incorporated under the laws of the Cayman Islands (“ Seller ”) and Giovanna Investment Hong Kong Limited , a company incorporated under the laws of Hong Kong (“ Sale Company ”).
Purchaser 1 and Purchaser 2 are hereinafter collectively referred to as the “ Purchasers ”, and each referred to as a “ Purchaser ”. The Purchasers, Seller, and Sale Company are hereinafter collectively referred to as the “ Parties ” and each a “ Party ”.
WHEREAS :
A. Sale Company holds certain Ordinary Shares in Focus Media Information Technology Co., Ltd., a public company established under the laws of the PRC whose shares are listed on the Shenzhen Stock Exchange with stock code 002027 (the “ Portfolio Company ”);
B. The Purchasers have agreed to purchase from Seller, and Seller has agreed to sell to the Purchasers, pursuant to the terms and conditions hereof, the Sale Shares (as defined below);
C. The Parties are entering into this Agreement to set forth the terms and conditions agreed between them in respect of the aforesaid transaction.
NOW, THEREFORE , in consideration of the mutual covenants, terms and conditions and understandings set forth in this Agreement, and for other good and valuable consideration, the sufficiency of which is acknowledged by the Parties, the Parties with the intent to be legally bound hereby covenant and agree as follows:
1. DEFINITIONS
1.1 Definitions . In addition to the terms defined in the recitals of and the text of this Agreement, the following terms used in this Agreement shall have the meanings ascribed to them in Schedule A attached hereto.
2. PURCHASE AND SALE OF THE SALE SHARES
Purchase and Sale . Subject to the terms and conditions set forth herein, Seller agrees to sell to each Purchaser, and each Purchaser agrees to purchase from Seller, such Purchaser’s Pro-rata Share of the Sale Shares for such Purchaser’s Pro-rata Share of the Purchase Price, in each case as set forth in Schedule B .
3. CLOSING
3.1 Closing Date . The Closing shall, subject to the satisfaction or waiver of the Conditions and subject to Section 4.5, take place at the office of Fangda Partners at 26/F, One Exchange Square, 8 Connaught Place, Central, Hong Kong, on August 15, 2018, or such other date as the Parties may mutually agree in writing (the “ Closing Date ”).
3.2 Closing Date Payments; Purchasers and Seller’s Closing Date Deliverables.
3.2.1 On the Closing Date, each Purchaser shall pay, or procure the payment of, its Pro-rata Share of the Purchase Price (and, if applicable, less its Pro-rata Share of stamp duty determined in accordance with Section 7.7.4), to the Seller by wire transfer of immediately available USD funds to an account designated by Seller, which shall be notified to the Purchasers in writing by no later than 5 Business Days prior to the Closing Date (“ Seller’s Account ”). Notwithstanding the foregoing, the Parties agree that upon the Purchasers providing evidence that they have given irrevocable bank payment instructions to the Seller’s Account for the payment of the Purchase Price (the “ Wiring Instructions ”), the Seller shall be obliged to perform its respective obligations at Closing (for the avoidance of doubt, actual receipt of the Purchase Price shall be necessary for the effectiveness of the Closing).
3.2.2 On the Closing Date, and subject to its receipt of copies of the Wiring Instructions in respect of its Purchase Price, (i) Seller shall deliver, or cause to be delivered, or make available, to the Purchasers each of the items listed in Part I of Schedule G , and (ii) each Purchaser shall deliver, or cause to be delivered, or make available, to Seller each of the items listed in Part II of Schedule G .
3.2.3 Seller shall, as soon as reasonably practicable and in any event by no later than three (3) Business Days after the receipt of the Purchase Price in full, issue an official receipt to the Purchasers.
4. CONDITIONS
4.1 The obligation of the Purchasers to consummate the Closing is subject to the fulfilment of the following conditions (the “ Purchaser Conditions ”), any of which may be waived by Purchaser 1:
4.1.1 Sale Company having issued and allotted new shares to Seller such that the total issued share capital of Sale Company shall at Closing be 1,000 or such other number as may be mutually agreed by the Parties (for the avoidance of doubt, all such issued and outstanding shares of Sale Company immediately prior to the Closing Date shall be deemed the Sale Shares under this Agreement);
4.1.2 Subject to Section 4.5, Seller having delivered to the Purchasers (i) the audited accounts of Sale Company for the financial year ended 31 December 2017 and for the six months ended 30 June 2018, each of which shall be covered by an unqualified opinion of one of the Big 4 Accountants that the financial statements of Sale Company give a true and fair view of the financial position, financial performance and cash flows of Sale Company as at and for the periods ending on the aforementioned dates (the “ Audited Accounts ”); and (ii) management accounts for the period from 1 July 2018 to the Closing Date (the “ Management Accounts ” and together with the Audited Accounts, the “ Accounts ”);
4.1.3 Seller and Sale Company having performed and complied with all obligations under this Agreement that are required to be performed or complied with by it on or before the Closing in all material respects;
4.1.4 all outstanding amounts under the Sale Company Note having been, at Seller’s sole discretion, repaid, capitalised and/or waived and all liability thereunder having been fully released by Seller; and
4.1.5 the Seller’s Warranties remaining true and correct as of the Closing Date as though made on such date in all material respects.
4.2 The obligation of Seller to consummate the Closing is subject to the fulfilment of the following conditions (the “ Seller Conditions ”, and together with Purchaser Conditions, the “ Conditions ”), any of which may be waived by Seller:
4.2.1 the Purchasers having performed and complied with all obligations under this Agreement that are required to be performed or complied with by each of them on or before Closing in all material respects; and
4.2.2 the Purchasers’ Warranties remaining true and correct as of the Closing Date as though made on such date in all material respects.
4.3 Purchaser 1 may, at any time, waive in whole or in part any of the Purchaser Conditions by written notice to the Seller and Seller may, at any time, waive in whole or in part any of its Seller Conditions by written notice to Purchaser 1.
4.4 Subject to Section 4.5 , if, in respect of the Closing, Seller, on one hand, or the Purchasers on the other hand fail(s) to comply on the Closing Date with any obligation in Section 3.2 and/or Schedule G , the non-defaulting Party shall be entitled (in addition to and without prejudice to all other rights and remedies available, including the right to claim damages) by written notice to such defaulting Party to effect Closing so far as reasonably practicable having regard to the defaults which have occurred, or to fix a new date for Closing which is no later than reasonably necessary for such defaulting Party to remedy such default and in any event no later than thirty (30) calendar days following the original Closing Date, in which case the provision of Section 3.2 and/or Schedule G shall apply to the Closing as so deferred provided that such deferral may only occur once.
4.5 Notwithstanding anything to the contrary in this Agreement, if, on the Closing Date, Seller is unable to or fails to deliver the Accounts, Seller shall be entitled to, by written notice to Purchasers, to fix a new date for Closing, at its discretion, which is no later than reasonably necessary for Seller to deliver all of the Accounts and in any event no later than thirty (30) calendar days following the original Closing Date, provided that such deferral may only occur once.
5. TERM AND TERMINATION
5.1 Term . The Parties hereby agree that this Agreement shall be effective as of the Effective Date and shall remain valid and binding on the Parties unless terminated by mutual consent in writing by Seller and Purchaser 1.
6. WARRANTIES
6.1 Seller’s Warranties . Seller hereby warrants to each Purchaser that the statements set forth in Schedule H (the “ Seller’s Warranties ”) are true and correct as of the Effective Date and immediately prior to Closing.
6.2 Purchaser’s Warranties . Each Purchaser hereby severally, and not jointly and not jointly and severally, warrants to Seller that the statements set forth in Schedule I (the “ Purchasers’ Warranties ”) are true and correct as of the Effective Date and immediately prior to Closing.
7. CERTAIN COVENANTS
7.1 Pre-Closing obligations
Seller undertakes to procure that between the Effective Date and Closing, Sale Company shall not, without the prior written consent of the Purchasers, enter into any transaction (including but not limited to the disposal of any assets) or pass any shareholders or board resolutions or take any action other than as contemplated under this Agreement (including but not limited to the pre-Closing actions referred to in Section 4.1 , Section 7.2 and Section 7.6 and any other actions reasonably necessary in order to satisfy the Purchaser Conditions as contemplated herein) or otherwise as reasonably required to maintain its corporate existence (including but not limited to the filing of Tax returns in accordance with Law).
7.2 Repayment of Sale Company Note and Distribution .
7.2.1 Seller and Sale Company acknowledge that the Sale Company Note is repayable, assignable and transferrable at any time prior to Closing.
7.2.2 Prior to Closing, without prejudice to other actions which Sale Company may undertake in relation to Sale Company Note and the balance in its bank accounts:
(a) Seller may demand Sale Company to repay, and Sale Company shall upon such demand repay all or any part of the outstanding amount under the Sale Company Note (the “ Note Repayment Amount ”). Such repayment shall be made by way of transfer of cash by Sale Company from the applicable bank account(s) of Sale Company equivalent to the Note Repayment Amount to one or more bank account(s) (the “ Designated Bank Account ”) as Seller shall notify Sale Company prior to the payment due date; and/or
(b) Seller may capitalise or otherwise contribute into the share capital of Sale Company, all or any part of the outstanding amount under the Sale Company Note (the “ Note Recapitalisation Amount ”) in accordance with the applicable Laws; and/or
(c) Seller may waive any outstanding amount under the Sale Company Note (the “ Waived Amount ”); and/or
(d) to the extent permitted under the applicable Law, Sale Company may from time to time declare dividend in cash to Seller, up to the aggregate amount outstanding in the bank accounts of Sale Company.
7.2.3 Each of Seller and Sale Company shall, subject to receipt of the Note Repayment Amount in the Designated Bank Account and/or capitalisation of the Note Recapitalisation Amount and/or waiver of the Waived Amount (as the case may be), prior to or at Closing, waive all its rights against each other and shall release each other from all liabilities under the Sale Company Note and the Sale Company Note shall therefore be satisfied, cancelled and/or terminated.
7.2.4 With respect to only the Waived Amount, Seller agrees to hold and retain an amount equal to the Estimated Hong Kong Tax Amount in one or more bank account(s) of Seller, and, upon the Sale Company or any Purchaser presenting a tax assessment notice issued by the Hong Kong Inland Revenue Department to Sale Company in respect of the tax year in which Closing occurs, (a) to the extent such notice evidences an amount of Tax assessed upon the Waived Amount (the “ Waived Amount Tax ”) it shall release to the Purchasers (or the Sale Company if the Purchasers so direct) an amount equal to the lower of the Waived Amount Tax and the Estimated Hong Kong Tax Amount, and (b) it shall release to the Seller the balance after deduction (if any) of the amount to be released in (a) above, of the Estimated Hong Kong Tax Amount (if any). The Purchasers undertake to the Seller that it shall, and shall procure Sale Company to, comply with all applicable Laws in making all Tax filings with and disclosure to the Hong Kong Inland Revenue Department in connection to the Waived Amount in accordance with the requirements imposed by the Hong Kong Inland Revenue Department and applicable Law in Hong Kong.
7.3 Reserved.
7.4 PRC Transfer Taxes and Pre-Closing Taxes .
7.4.1 Seller acknowledge that it is required to pay certain taxes pursuant to the Tax notice issued by the PRC State Administration of Taxation titled the “State Administration of Taxation’s Bulletin on Several Issues of Enterprise Income Tax on Income Arising from Indirect Transfers of Property by Non-resident Enterprises (State Administration of Taxation Bulletin [2015] No. 7)”, as may be amended or supplemented from time to time (“ Announcement 7 ”) arising from a sale of the Sale Shares as required pursuant to Announcement 7 or such other Taxes shown as due and owing on any return in respect of Announcement 7 (the “ PRC Withholding Taxes ”), to the relevant governmental authorities. Seller further acknowledges that the Purchasers shall have no obligation to pay any Tax of any nature that is required by applicable Laws to be paid by Seller or any of its Affiliates or any of its direct and indirect partners, members and shareholders arising out of the transactions contemplated by this Agreement (other than, for the avoidance of doubt, any stamp duty payable in accordance with Section 7.7) .
7.4.2 Seller shall, as soon as reasonably practicable and in any event within thirty (30) days after the Effective Date, engage at its own cost and expense, any one of the Big 4 Accountants as its filing agent (the “ Filing Agent ”), to duly and properly make with the competent PRC Tax Authority the relevant Tax filings and disclosures that are required under applicable Laws (including Announcement 7) in connection with the sale and purchase of the Sale Shares contemplated by this Agreement, and shall, name the Purchasers as joint applicants in respect of such filing (for the avoidance of doubt, none of the filing documents shall require the approval or execution by the Purchasers and provided that naming the Purchasers as joint applicants will not result in the filing documents (or any subsequent submissions) having to require the approval or execution by the Purchasers). As soon as reasonably practicable after such filing, the Seller shall deliver to Purchaser 1 a copy of the acknowledgement of receipt in respect of such filing issued by the relevant PRC Tax Authority. Neither any Purchaser nor its Affiliates shall make any filings or disclosures with the competent PRC Tax Authority or otherwise communicate with any competent PRC Tax Authority in respect of the matters contemplated by this Agreement or any other matters relating to Seller’s Tax liabilities, without the prior written consent of Seller, unless (a) requested by a PRC Tax Authority, or (b) Seller has breached any of its obligations under this Section 7.4 (provided Purchasers have provided Seller prior written notice of any such breach).
7.4.3 The Seller shall cause the Filing Agent to, on a monthly basis, give the Purchasers an update as to any development or progress in the assessment of any Taxes arising from Announcement 7 by the relevant PRC Tax Authority. Without prejudice to the foregoing, if the Seller or any of its Affiliates receives any notice or demand from any PRC Tax Authority in respect of the filing in relation to any matter set out in this Section 7.4 , the Seller shall, as promptly as practicable provide a true and complete copy of such notice or demand to the Purchasers.
7.4.4 Seller shall provide to the Purchasers with a copy of the official tax payment notice issued by the PRC Tax Authority, or other reasonable evidence of the PRC Tax Authority’s acceptance or confirmation of the Tax amount payable by Seller under Announcement 7 (the “ Tax Assessment Notice ”) as soon as reasonably practicable upon its receipt of such Tax Payment Notice. Seller shall, as soon as reasonably practicable after the assessment and final determination of Tax by the competent PRC Tax Authority pursuant to such Tax Assessment Notice, settle in full the payment of the Tax so assessed and finally determined as due and payable by Seller under Announcement 7 in connection with the sale and purchase of the Sale Shares contemplated by this Agreement (“ Announcement 7 Tax Amount ”) within the specified time period, and provide to the Purchasers evidence and supporting documents of the settlement and payment of such Announcement 7 Tax Amount (the “ Tax Payment Certificate ”).
7.5 Indemnity .
7.5.1 Following the Closing, Seller shall indemnify and hold harmless the Purchasers, the Sale Companies, their respective Affiliates and any of their agents, directors, officers, and employees (the “ Purchaser Indemnitees ”) against any (a) Losses or Taxes imposed on any Purchaser or Sale Company arising with respect to the transactions contemplated under this Agreement as a result of Seller’s failure to pay Taxes finally determined in respect of Announcement 7 (including without limitation Losses or Taxes in connection with the Sale Shares being assessed as having a tax basis in the hands of the Purchasers which is lower than the Purchase Price solely as a result of Seller’s failure to pay Taxes in respect of Announcement 7 in accordance with this Agreement), (b) Losses or Taxes of Sale Company for all taxable periods (or portions thereof) ending on or before the Closing Date, and (c) Losses or Taxes (including any Taxes as result of Announcement 7) arising from any transaction of Sale Company effected on or prior to Closing.
7.5.2 Notwithstanding anything to the contrary in this Agreement, and other than in respect of fraud by Seller, Seller’s total liability to the Purchaser Indemnitees for all claims or Losses for all matters arising under or in connection with this Agreement shall not exceed in the aggregate, an amount equal to the Purchase Price actually received by Seller in respect of the Sale Shares.
7.6 Deposit Amounts.
7.6.1 The Parties hereby acknowledge that as at the Effective Date, Sale Company maintains one or more RMB-denominated cash deposit bank accounts in the PRC with a financial institution in the PRC (each, a “ RMB Bank Account ”), and/or one or more USD-denominated cash deposit accounts in Hong Kong with a financial institution in Hong Kong (each a “ HK Bank Account ”, and together with the RMB Bank Accounts, the “ Bank Accounts ”), the details of which are set forth in Schedule F . The total cash balance in each Bank Account as of the Effective Date (except as otherwise noted therein) is set forth in Schedule F .
7.6.2 The Parties hereby acknowledge and agree that (i) to the extent not remitted out of the following accounts prior to the Closing Date, the total cash in the RMB Bank Accounts of Sale Company as of the Closing Date, including any interest earned prior to, on and after the Closing Date (such amount, the “ RMB Deposit Amount ”), the total cash in the HK Bank Account of Sale Company as of the Closing Date, including any related interest earned prior to, on and after the Closing Date (such amount, the “ HK Deposit Amount ”, together with the RMB Deposit Amount, the “ Deposit Amounts ”) are expressly excluded from, and shall not be deemed to be part of, the purchase and sale of the Sale Shares contemplated under this Agreement, (ii) the Deposit Amounts of Sale Company are beneficially owned by Seller, and (iii) Sale Company agrees to, and the Purchasers agree to cause Sale Company to, hold such Deposit Amounts in trust for the benefit of Seller and (iv) without the prior written consent of Seller, the Purchaser will not claim, use, transfer, dispose of or otherwise exploit the Deposit Amounts or set off or cause to be set off any other amount or obligation that may be owed to any Purchaser or otherwise against Sale Company’s RMB Deposit Amount, HK Deposit Amount or the Remitted Funds.
7.6.3 The Sale Company shall, at the expense and commercially reasonable direction of Seller, seek any applicable PRC tax and regulatory approvals required to effect the conversion and remittance of the Remitted Funds (as defined below) to the applicable Seller and, as promptly as legally permissible and practicable (unless otherwise instructed in writing by the relevant Seller), from time to time in one or more transactions, (i) convert the RMB Deposit Amount into USD (at such time and at such applicable exchange rates as instructed by Seller), and (ii) thereafter cause such funds and all funds in Sale Company’s HK Bank Account (collectively, the “ Remitted Funds ”) to be paid to Seller, in each case until all of the Deposit Amounts has been remitted to Seller.
7.6.4 In furtherance of, but without limiting the generality of, the foregoing, the nominees of Seller shall remain as authorized signatories of its Bank Accounts, it being intended and agreed by the Parties that Seller shall retain control in respect of the operation of, deposit of funds to, payment of items from, withdrawal of funds from (including, without limitation, the timing of, and any applicable exchange rates to be applied, in connection with any such withdrawals), disposition of funds on deposit in or other transactions and matters related to or associated with, its Bank Accounts and the Deposit Amounts, provided that such nominees shall, and Seller shall procure its nominees to, comply with all applicable Laws at all times. At the Closing, Sale Company may, subject to applicable bank requirements, (i) cause the authorized signatory(ies) of its HK Bank Account sign one or more payment instructions (to be acknowledged by the Purchaser) in a form to be approved by Purchaser 1 prior to Closing (which approval shall not be unreasonably withheld or delayed) (“ Remitted Funds Payment Instructions ”), pursuant to which Sale Company shall instruct the financial institution at which Sale Company has its HK Bank Account to remit by wire transfer any Remitted Funds from time to time standing to the credit of its HK Bank Account to Seller and (ii) enter into with Seller and financial institution a deed of assignment and/or any other agreement at the reasonable written request of Seller (in each case to be also entered into and acknowledged by the Purchaser) in a form to be approved by the Purchasers (which approval shall not be unreasonably withheld or delayed) prior to Closing, pursuant to which Sale Company shall assign the balance from time to time standing to the credit of its RMB Bank Accounts, HK Bank Account to Seller as security for the payment of the applicable Remitted Funds to Seller until all of Sale Company’s Deposit Amounts has been remitted to Seller (“ Deed of Assignment ”). The Purchasers shall, upon the reasonable written request of Seller, do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, in order to carry out the intent and accomplish the purposes of this Section 7.6 . Seller agrees that it will exercise its power as the authorized signatory of Sale Company’s RMB Bank Accounts, HK Bank Account, and exert its control over Sale Company’s RMB Deposit Amount and HK Deposit Amount, in all events in accordance with applicable Law and this Section 7.6 .
7.6.5 The Purchasers agree that, until all of Sale Company’s Deposit Amounts have been remitted to Seller in accordance with this Section 7.6 , they shall not, and shall cause Sale Company (on or after the Closing) not to, (i) directly or indirectly, take possession of, take control of, use, dispose of, deal with or otherwise exploit any RMB Deposit Amount, HK Deposit Amount or Remitted Funds, or set off or cause to be set off any other amount or obligation that may be owed to any Purchaser or otherwise against Sale Company’s RMB Deposit Amount, HK Deposit Amount or Remitted Funds; (ii) withdraw, revoke, invalidate, deny or otherwise refuse to acknowledge the Remitted Funds Payment Instructions or the Deed of Assignment or act pursuant to such Remitted Funds Payment Instructions or Deed of Assignment; or (iii) agree to any waiver or amendment of the terms of which any Bank Account of Sale Company is maintained.
7.6.6 As soon as reasonably practicable following completion of the remittance of Sale Company’s Deposit Amounts to Seller, Seller shall, and shall cause its nominees to, do such things as are necessary to close the Bank Accounts of Sale Company.
7.6.7 Seller shall pay (or reimburse Purchasers, if applicable) all fees, charges, costs, and expenses incurred in connection with its Bank Accounts, whether chargeable by the applicable bank or any other third party, including but not limited to the transactions contemplated under this Section 7.6 . Seller shall indemnify and hold harmless the Purchasers and Sale Company from and against all Losses as a result of any transactions performed (or requested by Seller to be performed) by the Purchasers in accordance with the terms of this Section 7.6 .
7.7 Stamp Duty.
7.7.1 The Purchasers (in their Pro Rata Share), on the one hand, and Seller, on the other hand, shall be equally responsible for the stamp duty payable to the Hong Kong Inland Revenue Department, if any, in connection with the purchase and sale of the Sale Shares.
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