UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of August 2024
Commission File Number: 001-40301
Infobird
Co., Ltd
(Registrant’s Name)
Room 706, 7/F, Low Block, Grand Millennium Plaza,
181 Queen’s Road Central, Central, Hong Kong
(Address of Principal Executive Offices)
Indicate by check mark whether the registrant files or will file annual
reports under cover Form 20-F or Form 40-F.
Form 20-F ☒
Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(7): ☐
INFORMATION CONTAINED IN THIS FORM 6-K REPORT
It was previously announced that on June 28, 2024,
Infobird Co., Ltd (the “Company”) entered into an equity acquisition agreement (the “Original Equity Acquisition Agreement”)
with Shangri-La Trading Limited (the “Seller”), in a single transaction, to acquire 65% of the issued and outstanding equity
of Pure Tech Global Limited at closing. The acquisition was planned to close in July 2024 (“Closing Date”), with the Company
acquiring Pure Tech Global Limited, which in turn indirectly wholly controls Pinmu Century (Beijing) Marketing Technology Co., Ltd, a
variable interest entity, and its subsidiaries (“Pinmu Century”). The aggregate purchase price for the equity acquisition
is approximately $40.0 million, inclusive of transaction costs, and will be funded using the cash on hand of $33 million and a promissory
note of $7 million.
On July 31, 2024, the Company entered into an amendment
(the “Amendment”, and the Original Equity Acquisition Agreement, as amended, the “Equity Acquisition Agreement”)
to the Original Equity Acquisition Agreement with the Seller. Under the Amendment, the Company, in a single transaction, will acquire
65% of the issued and outstanding equity of Pure Tech Global Limited at closing. Pure Tech Global Limited, which in turn indirectly wholly
controls Pinmu Century (Beijing) Marketing Technology Co., Ltd, a variable interest entity, and its subsidiaries (“Pinmu Century”),
and Zhenxi Brand Marketing Consulting (Shanghai) Centre, a variable interest entity, and its subsidiaries. The aggregate purchase price
for the equity acquisition remains the same at approximately $40.0 million, inclusive of transaction costs, and will be funded using the
cash on hand of $33 million and a promissory note of $7 million. Due to the Amendment, the Company and the Seller agreed on July 31, 2024
to extend the Closing Date to October 31, 2024.
Pure Tech Overview
Pure Tech and its subsidiaries are a technology company
specializing in digital advertising and marketing campaign for customers. With digital technology, Pure Tech develops effective and efficient
online marketing strategies for customers.
Based on the software and technology advantages built
by years of research and development investments, as well as years of accumulated experience in digital marketing and intelligent customer
service, Infobird vertically expands the market in the maternal and infant vertical field within the same industry, explores more customer
opportunities, and enhances the company’s value and competitiveness in the industry.
The foregoing description of the Amendment is qualified
in its entirety by reference to the full text of the form thereof, which is attached as Exhibit 10.1 hereto and incorporated by reference
herein.
Safe Harbor Statement
This Form 6-K contains “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended, and as defined in the U.S. Private Securities Litigation Reform Act of 1995. These forward-looking statements can be identified
by terminology such as “will,” “expects,” “is expected to,” “anticipates,” “aim,”
“future,” “intends,” “plans,” “believes,” “are likely to,” “estimates,”
“may,” “should” and similar expressions. Such forward-looking statements include, without limitation, the consummation
of the transaction discussed hereunder, and comments by the management about the benefits of these transactions . All statements other
than statements of historical fact in this Form 6-K are forward-looking statements and involve certain risks and uncertainties that could
cause actual results to differ materially from those in the forward-looking statements. These forward-looking statements are based on
management’s current expectations, assumptions, estimates and projections about the Company and the industry in which the Company
operates, but involve a number of unknown risks and uncertainties. Further information regarding these and other risks is included in
the Company’s filings with the U.S. Securities and Exchange Commission. The Company undertakes no obligation to update forward-looking
statements to reflect subsequent occurring events or circumstances, or changes in its expectations, except as may be required by law.
Although the Company believes that the expectations expressed in these forward-looking statements are reasonable, it cannot assure you
that such expectations will turn out to be correct, and actual results may differ materially from the anticipated results. You are urged
to consider these factors carefully in evaluating the forward-looking statements contained herein and are cautioned not to place undue
reliance on such forward-looking statements, which are qualified in their entirety by these cautionary statements.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| |
|
|
INFOBIRD CO., LTD |
| |
|
|
|
| Date: |
August 2, 2024 |
By: |
/s/ Yiting Song |
| |
|
|
Yiting Song, Chief Financial Officer |
EXHIBIT
10.1
AMENDMENT NO. 1 TO
Equity Acquisition Agreement
Infobird Co., Ltd
with
Pure Tech Global Limited,
and
SHANGRI-LA TRADING LIMITED
and
Pinmu Century (Beijing) Marketing Technology Co.,
Ltd
and
Zhenxi Brand Marketing
Consulting (Shanghai) Centre
July 31, 2024
This equity acquisition agreement
(this “Agreement”) is made and entered into by and between the following parties on July 31, 2024:
Transferee (hereinafter referred to as Party A):
Infobird Co., Ltd, a company incorporated under the laws of the Cayman Islands and listed on Nasdaq under the symbol IFBD;
Transferor (Party B or the Original Shareholder):
SHANGRI-LA TRADING LIMITED, a company incorporated under the laws of the Hong Kong;
Target Company: Pure Tech Global Limited, (hereinafter
referred to as the Target Company or Party C), a company incorporated under the laws of the British Virgin Islands, the
particulars of which is set forth in Schedule 1.
VIE Entities: Pinmu Century (Beijing) Marketing Technology
Co., Ltd and Zhenxi Brand Marketing Consulting (Shanghai) Centre (hereinafter referred to as the VIE Entities or Party
D), companies incorporated under the laws of the People’s Republic of China (“PRC”), the particulars
of which is set forth in Schedule 1.
Whereas:
1. Party
A proposes to acquire, and Party B proposes to sell, 65% of the issued and outstanding equity of the Target Company owned by
Party B (collectively, the “Purchased Shares”)
on the terms and conditions set forth in this Agreement.
2. Party
B is the legal and beneficial owners of 65% of the issued and outstanding equity of the Target Company.
3. The
VIE entities are indirect wholly subsidiaries controlled by the Target Company through VIE agreements and collectively valued at a total
of RMB 475,000,000 by ValueLink Management Consultants Limited (“ValueLink”) pursuant to their report dated
June 28, 2024 (“ValueLink’s Report”).
4. The
following agreement is concluded upon friendly negotiation among Party A, Party B, Party C and the VIE Entities (hereinafter collectively
referred to as the Parties):
Article 1 Purchase and Sale
1.1 At Closing, Party B agrees to transfer, sell and
assign, and Party A agrees to purchase, the Purchased Shares free from all Encumbrances (defined below) and together with all rights attached
or accruing to them in accordance with the terms of this Agreement. Following the Closing (as defined below), Party A will hold 65% of
the issued and outstanding equity of Target Company on a fully diluted basis. “Encumbrance” means: (a) any mortgage,
charge (whether legal or equitable and whether fixed or floating), lien, pledge or other encumbrance securing any obligation of any person;
(b) any option, right to acquire, right of pre-emption, right of set-off or other arrangement under which money or claims to, or for the
benefit of, any Person may be applied or set off so as to effect discharge of any sum owed or payable to any person; or (c) any equity,
assignment, hypothecation, title retention, claim, restriction, power of sale or other type of preferential arrangement the effect of
which is to give a creditor in respect of indebtedness a preferential position in relation to any asset of a Person on any insolvency
proceeding of that person.
1.2 Party A shall not be obliged to complete the purchase of any of the
Purchased Shares unless the purchase by it of all of the Purchased Shares is completed simultaneously.
1.3 Prior to Closing, each Original Shareholder agrees that he/she will
not, and will not agree to, sell or dispose (either directly or indirectly) the legal and beneficial interest in any Purchased Shares
held by him/her.
Article 2 Purchase Price
The Parties agree that the total purchase price (the
“Purchase Price”) for the Purchased Shares is USD$40,000,000.00, which was agreed between the Parties pursuant to ValueLink’s
Report. If there is any Leakage (defined below), the Purchase Price should be adjusted downwards on a dollar-for-dollar basis. The Purchase
Price will be paid by Party A in the form of cash of USD$33,000,000.00 (the “Cash Consideration”) and the form of a
promissory note of Party A in an aggregate amount of USD$7,000,000.00 (the “Consideration Note”), and a waiver of RMB28,000,000.00
debt owed by Beijing Runmei Advertising Co., Ltd, an affiliated company of the former controlling person of the Target Company, to the
Target Company, as determined by Party A.
“Leakage” means each and any of the
following (without double counting) which occurred after the date of this agreement and before the Closing:
| (a) | any
dividend or distribution (whether in cash or kind) declared, paid or made by Party C (including
its direct wholly owned subsidiary, Pure Media Limited, the particulars of which is set forth
in Schedule 1) to any of its shareholders (including Party B) or any member of the Sellers’
Group (defined below); |
| (b) | any
redemption or purchase of its own shares or other securities, any other form of return of
capital (whether by reduction of capital or otherwise), or any other payment in respect of
any shares or other securities, in each case by Party C (including its direct wholly owned
subsidiary, Pure Media Limited) to any of its shareholders (including Party B) or any member
of the Seller’s Group; |
| (c) | any
other payments made, or any assets, rights or other benefits transferred, by Party C (including
its direct wholly owned subsidiary, Pure Media Limited) to, or for the benefit of, any of
its shareholders (including Party B) or any member of the Sellers’ Group; |
| (d) | any
disposal of assets by Party B, Party C (including its direct wholly owned subsidiary, Pure
Media Limited) and VIE Entities (including all of its entities) (other than disposal in the
ordinary course of business); |
| (e) | any
indebtedness or liabilities (other than any liability incurred in the ordinary course of
business) assumed, indemnified, guaranteed or incurred by Party B, Party C (including its
direct wholly owned subsidiary, Pure Media Limited) and VIE Entities (including all of its
entities); |
| (f) | the
waiver by Party C (including its direct wholly owned subsidiary, Pure Media Limited) of any
amount owed to it by, or of any right of the Party C against, any of its shareholders (including
Party B) or any member of the Sellers’ Group; |
| (g) | any
Encumbrance over any of the assets of Party B, Party C (including its direct wholly owned
subsidiary, Pure Media Limited) and VIE Entities (including all of its entities) other than
in the ordinary course of business; |
| (h) | any
unusual or non-contractual payment by Party B, Party C (including its direct wholly owned
subsidiary, Pure Media Limited) and VIE Entities (including all of its entities) of a bonus
or other emolument to any their respective director, officer or employee of or any other
payment to any of the foregoing in connection with the sale and purchase of the Purchased
Shares contemplated by this agreement and all ancillary matters relating thereto (the “Transaction”); |
| (i) | any
payment made, or fees or costs incurred, by the Target Company in connection with the Transaction; |
| (j) | the
payment by Party C to any of its shareholders (including Party B) or any member of the Sellers’
Group of any amounts (whether principal amounts, interest payments or otherwise) under any
indebtedness; |
| (k) | any
agreement or arrangement by Party B, Party C (including its direct wholly owned subsidiary,
Pure Media Limited) and VIE Entities (including all of its entities) to give effect to any
of the matters referred to above; or |
| (l) | any
tax paid or that will become payable by Party B, Party C (including its direct wholly owned
subsidiary, Pure Media Limited) and VIE Entities (including all of its entities) in connection
with any of the matters referred to above. |
Article 3 Closing
3.1 Payment of Purchase Price: Party A shall remit the
Cash Consideration and Consideration Note to Party B at Closing.
3.2 Subject to the terms and conditions of this Agreement,
the closing of the Transaction (the “Closing”) shall be completed within 180 days after signing the Agreement (the
date on which the Closing actually occurs, the “Closing Date”) with the Closing conditions set out in Article 3.4 being
proved to be met or waived by Party A (except for those that should be met on the Closing Date pursuant to its terms).
The Target Company shall deliver a written notice to
Party A within two (2) working days after the closing conditions are met (excluding those that should be met on the Closing Date pursuant
to its terms), informing Party A that such conditions have been met and shall provide all supporting documents satisfactory to all Parties.
The former controlling person of the Target Company shall coordinate with Party A to adjust the company structure prior to or after Closing.
3.3 At or prior to Closing, the Target Company and Party
B shall deliver to Party A each of the following documents:
| (a) | a
certificate jointly from each of the Original Shareholders confirming that (i) it has performed
and complied with, in all material respects, all covenants and obligations required to be
performed or complied with by him/her under this Agreement on or before the Closing Date,
(ii) each of the Warranties (defined below) is complete, true and accurate and not misleading
as at the date of this Agreement and as at the Closing Date as though restated on and as
at the Closing Date with respect to facts, events and circumstances existing as at such date;
and (iii) each of the conditions set forth in Article 3.4 have been satisfied (other than
those conditions that have been waived in writing by Party A); |
| (b) | duly
executed instruments of transfers in respect of all of the Purchased Shares in favor of Party
A (or such person as Party A may nominate); |
| (c) | copies
of the duly executed share certificates representing the Purchased Shares registered in the
name of Party A (or such person as Party A may nominate); |
| (d) | a
certified copy of the shareholder register of the Target Company, showing that the equity
proportion registered by Party A in the Target Company is 65%, there is no Encumbrance on
the equity of the Target Company, and the cancellation of the Purchased Shares registered
in the name of the relevant Original Shareholders, and the registration of the Purchased
Shares in the name of Party A (or such person as Party A may nominate); |
| (e) | letters
of resignation in the agreed form of each of the directors and officers of the Target Company,
other than the officers set out in Schedule 2 (the “Retained Management”),
from his/her office as a director and/or an officer, including a waiver of all claims against
the Target Company. |
| (f) | the
resolutions duly and validly adopted by the board of directors and the shareholders of the
Target Company certifying that they have approved and authorized the closing of the Transactions
and agreed to the investment and share transfer provided hereunder; the adoption of the amended
articles of association; and the new composition of the board of directors; and |
| (g) | duly
executed copies of this Agreement, the amended articles of association and such other ancillary
documents as Party A may deem to be necessary to complete the Closing. |
3.4 The obligation of Party A to complete the purchase
of the Purchased Shares pursuant to this Agreement is conditional on the following conditions having been fulfilled on or prior to the
Closing Date to Party A’s satisfaction, or waived by Party A:
| (a) | Party
B and Party C having performed and complied with, in all material respects, all covenants
and obligations required to be performed or complied with by it/him/her under this Agreement
on or before the Closing Date; |
| (b) | each
of the Warranties being complete, true and accurate and not misleading as at the date of
this Agreement and as at the Closing Date and the Target Company and Party B having delivered
the items contemplated under Article 3.3; |
| (c) | no
proceedings having been instituted or threatened that seek to restrain, prohibit, declare
illegal, or otherwise challenge or interfere or obtain relief in connection with the Transaction,
nor there coming into force any law having the same result; |
| (d) | in
connection with the Transaction, (i) all requisite filings or registrations have been made
with; and (ii) all requisite governmental authorizations on terms and conditions reasonably
satisfactory to Party A have been obtained from, all applicable governmental entities; |
| (e) | there
has been no actual or threatened revocation, termination or suspension of existing business
relationship with any of the customers or vendors of the Target Company; |
| (f) | each
Retained Management having been retained by the Target Company; |
| (g) | there
has been no Material Adverse Change and for this purpose, “Material Adverse Change”
means any effect attributable to or resulting from an event, circumstance, occurrence or
non-occurrence since the date of this Agreement that, individually or in the aggregate with
other events, circumstances, occurrences or non-occurrences since that date, is or would
reasonably be expected to be materially adverse to the business, assets, prospects, financial
condition or results of the operations of the Target Company or to the Closing of the Transaction; |
| (h) | completion
of the unaudited of the consolidated financial statements of the Target Company for fiscal
years of 2022 and 2023 (the “Accounts”); |
| (i) | delivery
of the legal opinions from the PRC counsel in accordance with the requirements of the Trial
Administrative Measures of the Overseas Securities Offering and Listing by Domestic Companies
for the Transaction and pre-filing if necessary, each in form and content satisfactory to
Party A; and |
| (j) | it
being reasonably expected that immediately following the Closing, Party A will satisfy the
applicable listing requirements of Nasdaq. |
| (k) | the
execution of VIE agreements in form and substance satisfactory to Party A (the “VIE
Agreements”) to enable the Target Company, through its subsidiary, to gain effective
control over and receive all the economic benefits generated by, the businesses operated
by the VIE Entities. |
3.5 After Closing, Party A shall waive the debt in a
value of RMB28,000,000.00, owed by Beijing Runmei Advertising Co., Ltd, an affiliated company of the former controlling person of the
Target Company, to the Target Company. The exemption of debt shall be effective to execution after the acquisition finished.
Article 4 Pre-Closing Obligations of the Original
Shareholders and the Target Company
4.1 Party B and the Target Company shall cooperate with
and assist Party A in auditing, assessment and other evaluation of the Target Company.
4.2 Party B and the Target Company shall promptly sign
and provide all relevant documents to be signed and provided by them in connection with such equity transfer which are required to be
submitted for approval.
4.3 Target Company shall complete the shareholding structure
for both overseas and domestic. Party B shall procure the current shareholders of the VIE Entities to, and the VIE Entities shall, enter
into the VIE Agreements.
4.4 Between the date of this Agreement and Closing,
the Target Company shall, and the Original Shareholders shall jointly and severally procure the Target Company and its subsidiaries to:
| (a) | carry
on its business in the ordinary and usual course; |
| (b) | comply
with all applicable laws and governmental authorizations; |
| (c) | keep
Party A fully and promptly informed and require Party A’s written consent of all material
matters relating to the assets, liabilities and business of the Target Company between RMB500,000
to RMB $1,000,000 (individually or in the aggregate), any transaction over this range requires
Party A’s consent.; or |
| (d) | require
Party A’s written consent for entering into any contract, agreement, license or, commitment,
which obligates the payment of more than $1,000,000 (individually or in the aggregate), any
capital expenditures in excess of $1,000,000 (individually or in the aggregate), sell, lease,
license or otherwise dispose of any of its assets or assets covered by any contract, and
any salary increase of more than 25% for any employee; or |
| (e) | take
all reasonable steps to preserve the goodwill of the businesses of the Target Company and
encourage customers, suppliers and others having business relations with the Target Company
to continue to deal with the Target Company and do nothing which damages, or would be likely
to damage, such goodwill; and |
| (f) | submit
all appropriate tax-related submissions, notifications and filings to the relevant governmental
entities. |
4.5 Without limiting the generality of Article 4.4, between the date of
this Agreement and Closing, the Target Company shall not, and the Original Shareholders shall procure the Target Company and its consolidate
entities not to, without Party A’s prior written consent:
| (a) | alter
any constitutional documents of the Target Company or any of its subsidiaries; |
| (b) | alter
the nature and scope of the business of the Target Company; |
| (c) | issue
any debt or equity security or other security convertible or exchange into any security of
the Target Company, or reduce, redeem or repay any share or loan capital or other securities
of the Target Company; |
| (d) | declaration
of, or the making or payment of, a dividend or other distribution to shareholders of the
Target Company (including the Original Shareholders); |
| (e) | pass
any shareholder resolutions of the Target Company; |
| (g) | make
change to the accounting practices or policies of the Target Company; |
| (h) | make
any capital commitment; |
| (i) | incur
any borrowing or pre-payment of any borrowing; |
| (j) | create
or grant of any Encumbrance (other than a lien arising by operation of law or in the ordinary
and usual course of business) over the whole or any part of the undertaking or any asset
of the Target Company or any guarantee, indemnity or other agreement to secure any obligation
of any person; |
| (k) | make
of any loan (other than the granting of trade credit in the ordinary and usual course of
business) to any person; |
| (l) | enter
into of, or amending, any contract, understanding or arrangement which is not on an arm’s
length basis and for full and proper consideration; relates to or affects a material part
of the business of the Target Company; or is materially unusual or abnormal or onerous; |
| (m) | make
any amendment or terminate or give notice to terminate any governmental authorizations or
Material Contracts (defined below), which would result in an Material Adverse Change; |
| (n) | appoint
or employ (or terminate the appointment or employment) of any director, officer or senior
employee of the Target Company or the alteration of any material terms related thereto; |
| (o) | make
any material amendment to the terms of employment of any category of employees; |
| (p) | acquire
or dispose of any interest in (a) any securities of any person; or (b) asset (other than
an acquisition or disposal in the ordinary and usual course of business and on normal arm’s
length terms); |
| (q) | enter
into any joint venture, partnership or agreement or arrangement for the sharing of profits
or assets); |
| (r) | assign,
license, charge, abandon, fail to prosecute or other dispose of, or fail to maintain, defend
or diligently pursue applications for, any of the intellectual property; |
| (s) | commence,
compromise, settle, release or discharge of any proceedings; |
| (t) | make
any change in its accounting principles other than in accordance with the applicable accounting
policies or methods or write down the value of any Inventory or assets other than in the
ordinary course of business consistent with past practice; |
| (u) | make,
change or revoke any material tax election or change any annual tax accounting periods; settle
or compromise any material claim, notice, audit report or assessment in respect of taxes;
or enter into any tax allocation, tax sharing, tax indemnity or other closing agreement relating
to any taxes (other than a contract entered into in the ordinary course of business consistent
with past practices, the primary purpose of which is not related to taxes); |
| (v) | authorize
or agree to do or take any of the foregoing acts or matters; or |
| (w) | undertake
any legally binding obligation to do any of the foregoing. |
Article 5 Additional Obligations
5.1 Party A shall supervise and handle its approval
procedures for such equity transfer in a timely manner pursuant to the provisions hereof.
5.2 Party A shall issue relevant documents that shall
be signed or issued by it to complete such equity transfer.
5.3 The Original Shareholders shall provide or procure
the provision to the Target Company such facilities and services as the Target Company may from time to time reasonably require to enable
the Target Company to continue to carry on its business in all material respects in the same manner in which it was carried on and on
the same terms on which such facilities or services were provided preceding the Closing Date. The Original Shareholders shall use their
best endeavors to assist with the transition of customers and vendors of the Target Company.
5.4 The Original Shareholders shall procure that each Retained Management
enter an employment agreement with Party A or an affiliate of Party A to the satisfaction of Party A.
5.5 The Original Shareholders undertake to Party A that
it shall not, and shall procure their respective affiliates not to, directly or indirectly, in any capacity:
| (a) | at
any time after the date of this Agreement: |
| (i) | do
or say anything which is likely or intended to damage the goodwill or reputation of the Target
Company or its affiliates or of any business carried on by the Target or its subsidiaries;
or |
| (ii) | except
as otherwise expressly permitted by this Agreement, disclose to any person, or use for any
purpose whatsoever, any information which is secret or confidential to the business or affairs
of the Target Company or its subsidiaries; |
| (b) | within
one (1) years after the Closing: |
| (i) | carry
on, be engaged in, provide services to, be concerned or associated with, be interested in
or in any way assist with, any business which is or is likely to be in competition with the
business of the Target Company, Party A or any of their consolidated entities (the “Protected
Entities”) except in connection with the provision of the services pursuant to
Article 5.3 or other services as otherwise agreed in writing by Party A; |
| (ii) | canvas
or solicit the custom of any person that is or has within twenty four months prior to the
Closing been a client or customer of any Protected Entity in relation to goods or services
sold or provided by such Protected Entity; or |
| (iii) | offer
employment to or employ or offer to enter into any contract for services with any person
who is an employee of any Protected Entity, or induce any of those employees to terminate
his employment with such Protected Entity, except as otherwise agreed in writing by Party
A. |
The Original Shareholders
agree and acknowledge that the restrictions set out in Article 5.5 have been specifically negotiated and agreed between sophisticated
parties, are necessary to protect Party A and the Target after Closing and are reasonable in scope and duration under the circumstances.
Article 6 Representations and Warranties
6.1 Representations
and warranties of Party A:
6.1.1 Party
A has all necessary corresponding rights, powers, and authorizations to sign this Agreement, fulfill their respective obligations hereunder
and complete the proposed Transaction.
6.1.2 This
Agreement constitutes the legal, valid, and binding obligations of Party A, and may be enforced against it in accordance with the terms
hereof.
6.1.3 The execution,
delivery and performance of this Agreement by Party A does not and will not violate or conflict with any laws or government directives
applicable to it and any binding agreements, contracts and other legal documents entered into by it.
6.1.4 Party
A has obtained any and all written consents, approvals and authorizations from third parties, which are necessary to execute, deliver
and perform this Agreement and complete the transactions hereunder.
6.2 Representations
and warranties of Target Company and the Original Shareholders:
In order to induce Party A to enter into this Agreement,
the Target Company and Party B hereby jointly and severally make the following representations and warranties to Party A, which, are true,
accurate, complete and not misleading as of the date hereof and as of the Closing Date.
Unless specified or otherwise required by the context,
Target Company for purpose of the representations and warranties under Article 6 shall include Pure Tech Global Limited and any of its
subsidiaries.
Capacity:
6.2.1 Each
of the Target Company and the Original Shareholders has all necessary corresponding rights, powers, and authorizations to sign this Agreement,
fulfill their respective obligations hereunder and complete the proposed Transaction.
6.2.2 This
Agreement constitutes the legal, valid, and binding obligations of each of the Target Company and the Original Shareholders, and may be
enforced against it in accordance with the terms hereof.
6.2.3 The execution,
delivery and performance of this Agreement by each of the Target Company and the Original Shareholders does not and will not violate or
conflict with any laws or government directives applicable to it and any binding agreements, contracts and other legal documents entered
into by it.
6.2.4 Each
of the Target Company and the Original Shareholders has obtained any and all written consents, approvals and authorizations from third
parties, which are necessary to execute, deliver and perform this Agreement and complete the transactions hereunder.
Purchased Shares:
6.2.5 The particulars shown in of Schedule 1 are true,
accurate and not misleading.
6.2.6 Each Original Shareholder is the lawful owner,
of record and beneficially, of its respective Purchased Shares. Each Original Shareholder has good, valid and marketable title to its
respective Purchased Shares, free and clear of any Encumbrances, and with no restriction on the voting rights and other incidents of record
and beneficial ownership pertaining thereto. Except for this Agreement, there are no outstanding contracts or understandings between the
Target Company or either of the Original Shareholders and any other person with respect to the acquisition, disposition, transfer, registration
or voting of or any other matters in any way pertaining or relating to, or any other restrictions on any of the Purchased Shares. At Closing,
Party A shall own all of the Purchased Shares, free and clear of all Encumbrances.
6.2.7 The Purchased Shares comprise 65% of the issued and outstanding share
capital of the Target Company on a fully diluted basis, have been validly issued and allotted and each is fully paid and non-assessable
common share in the capital of the Target Company. Except for the Purchased Shares, no shares of capital stock, warrants, options or other
securities of the Target Company are issuable and no rights in connection with any shares, warrants, options or other securities of the
Target Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
6.2.8 All consents for the transfer of the Purchased Shares have been obtained
or will be obtained before Closing.
Consequence of this Agreement
| 6.2.9 | The entering into and performance of this Agreement and any other document to be entered into pursuant to or in connection with this
Agreement will not nor is likely to: |
| (a) | so
far as the Original Shareholders are aware, cause the Target Company to lose the benefit
of any right or privilege it presently enjoys; |
| (b) | so
far as the Original Shareholders are aware, cause any person who normally does business with
or gives credit to the Target Company not to continue to do so on the same basis as previously; |
| (c) | result
in a breach or constitute (with or without the lapse of time and/or the giving of any notice,
certificate, declaration or demand) a default or give rise to any right of termination, variation,
payment or acceleration, under any contract to which the Target Company is a party or result
in the imposition of an Encumbrance on the assets of the Target Company or the Purchased
Shares; or |
| (d) | so
far as the Original Shareholders are aware, adversely affect the attitude or action of customers,
clients, suppliers, employees and other persons with regard to the Target Company. |
Legal Compliance and Litigation
6.2.10 A corporate
structure chart showing the Target Company and its shareholdings in all of its consolidated entities are shown in Schedule 3. Except as
stated in Schedule 6.2.61, the corporate structure of the Target Company complies with all applicable laws and regulations, and neither
the ownership structure nor any VIE contracts in respect of the Target Company violate, breach, contravene or otherwise conflict with
any applicable laws. The Target Company are legally incorporated, validly existing, and qualified limited liability companies under their
respective jurisdictions of incorporation, with all necessary rights and powers to engage in their current and proposed business operations.
The Target Company have at all times carried on their business and affairs in all respects in accordance with its constitutional documents
from time to time in force.
6.2.11 The Target Company comply with the requirements
of relevant government regulatory agencies in terms of law, finance, management, technology, intellectual property, business, company
licenses, and government regulations.
6.2.12 The Target Company have at all times conducted
its business and operations in accordance with all applicable laws in all material respects and there is no investigation, notice or enquiry
by, or order, decree, decision, prosecution or judgment of, any governmental entity against the Target Company, their respective officers
or employees or any other person for whose acts or defaults the Target Company may be vicariously liable with respect to an alleged, actual
or potential material breach of, and/or material failure to comply with, any applicable law.
6.2.13 All licences, as set forth in Schedule 6.2.13, required for or in
connection with the carrying on of the business and the operations of the Target Company in the manner and in the places in which such
business and operations are carried on or proposed to be carried on:
| (a) | have
been obtained and are in full force and effect; |
| (b) | have
been provided to Party A together with complete and accurate copies thereof; |
| (c) | are
not limited in duration or subject to onerous conditions; and |
| (d) | have
been and are being complied with. |
6.2.14
There are no circumstances which indicate that any of the licences may be modified, revoked or not renewed or which confer a right of
modification, revocation or non-renewal.
6.2.15
None of the Target Company or any person acting on their behalf has:
| (a) | made
any unlawful contribution or gift or provided any unlawful entertainment or expenditure relating
to political activity in connection with the business of the Target Company; |
| (b) | made
any direct or indirect unlawful payment to any foreign or domestic governmental entity or
government official or employee in connection with the business of the Target Company; |
| (c) | paid
any bribe, rebate, pay-off, influence payment or other unlawful payment; or |
| (d) | breached
any provision of the U.S. Foreign Corrupt Practices Act of 1977 or the regulations issued
thereunder or any similar any similar anticorruption or anti-bribery laws of any other jurisdiction. |
6.2.16 Party
B do not directly or indirectly own or control any other company, partnership, partnership, enterprise or other investment that forms
a competitive relationship with the Target Company. Party B currently does not own or control, directly or indirectly, any interest in
any other company, legal person, partnership, trust, joint venture, association or other business entity, nor is it a participant in any
joint venture, partnership or similar arrangement; nor is there any real or potential obligation to engage in such arrangements or to
make any equity investment.
6.2.17 Except
as set forth in Schedule 6.2.17, there is no lawsuit, arbitration, administrative penalty, claim, investigation or other legal proceeding
that is brought by any third party, court, government agency, or arbitration institution against or in connection with the Target Company,
nor is there any unenforced rulings or judgments that will result in a Material Adverse Change. So far as the Original Shareholders are
aware, there are no facts or circumstances which might give rise to any material proceedings.
Date Protection:
6.2.18 The Target Company complies with and has at all
times complied with all of its obligations under applicable data protection legislation.
6.2.19 No notice or allegation has been received by
the Target Company from a competent authority alleging that the Target Company has not complied with any applicable data protection laws.
6.2.20 No individual has claimed, and no grounds exist
for an individual to claim, compensation from the Company for breaches of applicable data protection laws.
Accounts:
6.2.21 The Accounts have been prepared in accordance
with all applicable laws and the U.S. GAAP at the date of publication of the Accounts and any other management accounts of the Target
Company provided to Party A has been prepared on the same basis as the Accounts.
6.2.22 The Accounts give a true and fair view of the
state of affairs of the Target Company for the two years ended and as at December 31, 2023 (the “Accounts Date”) and
of the balance sheet, profits and losses for the financial period to which they relate and there is no liability that is not adequately
provided for or noted in the Accounts.
6.2.23 The accounting records of the Target Company
are up-to-date, have been maintained on a proper and consistent basis and in accordance with all applicable laws and the accounting standards.
They contain an accurate and complete record of all matters required to be entered in them or which are otherwise entered in them. No
notice or allegation that any of the accounting records is incorrect or should be rectified has been received.
Finance:
6.2.24 Except as stated in Schedule 6.2.24, the Target
Company has:
| |
(a) |
no outstanding loan capital nor has it incurred any borrowing which it has not repaid or satisfied; |
| (b) | not
been a party to or under any obligation in relation to any loan agreement, debenture, acceptance
credit facility, bill of exchange, promissory note, finance lease, debt or inventory financing,
discounting or factoring or sale and loan arrangement or any other arrangement the purpose
of which is to raise money or provide finance or credit; and |
| (c) | not
engaged in any financing of a type which would not be required to be shown or reflected in
the Accounts. |
6.2.25 The Target Company has not lent or agreed to
lend any money to any person, is not responsible for the indebtedness or other liability of any person and has not given any guarantee,
indemnity or other assurance of loss in relation to any indebtedness or other Liability of any Person.
6.2.26 The Target Company has not created or agreed
to create any Encumbrance (except liens arising by operation of law in the ordinary and usual course of business) over or entered
into any factoring arrangement in relation to any of the Assets (as defined below) and all of the Assets are free from any hire or hire
purchase agreement, conditional sale or credit sale agreement, leasing or rental agreement or agreement for payment on deferred terms
or other Encumbrance.
6.2.27 The Target Company does not own the benefit of
any debt (whether present or future) other than debt owing to the Target Company in the ordinary course of trading.
6.2.28 The Target Company has sufficient working capital
for the next 12 months from the date of this Agreement for the purpose of continuing to carry on its business in its present form and
at its present level of turnover and of performing all orders, projects and contractual obligations which have been placed with, or undertaken
by, the Target Company in accordance with their terms.
Events since the Accounts Date:
6.2.29 Since the Accounts Date and except as disclosed
in Schedule 4:
| (a) | the
Target Company has carried on its business in the ordinary and usual course (including as
to nature and scope) and so as to maintain its business as a going concern; |
| (b) | there
has been no material adverse change in the financial or trading position or prospects of
the Target Company; |
| (c) | the
Target Company has not acquired or disposed of any asset nor agreed to acquire or dispose
of an asset, other than the sale of inventory or products in the ordinary and usual
course of business; |
| (d) | the
Target Company has not made or agreed to make any capital expenditure; |
| (e) | there
has been no unusual or material increase or decrease in the level of the Target Company’s
trading stock (including work-in-progress) or the price paid for its trading stock; |
| (f) | the
profits and losses of the Target Company and the trend of profits and losses have not been
affected by changes or inconsistencies in accounting treatment; |
| (g) | there
has been no change in the manner or time of payment of creditors and there has been no change
in the manner or time of collection of debts or the policy of reserving for debtors; |
| (h) | the
Target Company has not cancelled or delayed, in whole or in part, any capital expenditure
or other material item of discretionary spending that is set out in the Company’s business
plan in force as at the date of this Agreement; |
| (i) | the
Target Company has not allotted or issued, nor has it granted any option over or other right
to subscribe for or purchase, any of its share or loan capital or other securities and it
has not made any agreement or arrangement to do the same; |
| (j) | the
Target Company has not reduced, redeemed or repaid any of its share or loan capital or other
securities; |
| (k) | no
change has been made to the accounting reference date of the Target Company; and |
| (l) | no
resolution of shareholders has been passed or signed other than resolutions to approve the
Transaction. |
The Target Company undertakes not to have any undisclosed
liabilities prior to Closing.
Assets
6.2.30 The Target Company has legal and beneficial title,
as set forth in Schedule 6.2.30, to and is, where capable of possession, in possession and control of, all assets included in the Accounts
or which were acquired by the Company since the Accounts Date (except for assets sold, realized or applied in the ordinary and
usual course of business) (“Assets”). All the Assets, which comprise all the assets necessary for the carrying on of
the business of the Target Company fully and effectively in the manner and to the extent it is now conducted, are free from Encumbrances
and no third party has or claims any rights in relation to the Assets (or to the proceeds of sale of the Assets).
6.2.31 All Assets owned or used by the Target Company
are in good condition and state of repair, have been regularly and properly maintained, are serviceable and in satisfactory working order
and the vehicles are correctly licensed (where applicable) and roadworthy. All such assets are capable of being efficiently and properly
used in the Target Company’s business and none is dangerous, obsolete, surplus to requirements, inefficient or in need of renewal
or replacement.
Insurance
6.2.32 The Target Company has at all times maintained
adequate insurance, as set forth in Schedule 6.2.32, cover against risks normally insured against by companies carrying on similar businesses
or owning property and/or assets of a similar nature to the Company (the “Policies”) and, in particular, has maintained
all insurance required by Law. Full details of the Policies held by the Company have been provided to Party A together with complete and
accurate copies of the Policies.
6.2.33 All premiums due on the Policies have been duly
paid and all the Policies are valid and in force and are not void or voidable or unenforceable for any reason. There are no claims outstanding
under the Policies which have been rejected by the insurer and no event has occurred which might give rise to a material claim.
6.2.34 Details of all claims made under insurance policies
held by the Target Company during the period of five years prior to the date of this Agreement have been provided to Party A.
Intellectual Properties:
6.2.35 Details
of all registered intellectual property rights (and applications for any such rights) and material unregistered intellectual property
rights owned, as set forth in Schedule 6.2.35, by the Target Company has been provided to Party A and the Target Company is the sole legal
and beneficial owner of such rights free from all Encumbrances. The employees, consultants, and independent partners of the Target Company
have not infringed on the legitimate rights of former employer or other intellectual property holders,
or engaged in any violations of confidentiality obligations, non-competitive obligations, and non-collusion obligations agreed with the
corresponding the Target Company, the former employer, and any other third party, or failed to serve the interests of the Target
Company due to constraints of agreements or government directives or been in conflict with the interests
of the Target Company.
6.2.36 None of the intellectual property rights owned
by the Target Company is the subject of any dispute or proceedings and no dispute or proceedings are threatened.
6.2.37 Details of all contracts (including licences)
that are material to the business of the Target Company relating to intellectual property rights have been provided to Party A together
with complete and accurate copies of any written terms relating thereto.
6.2.38 No third party is infringing or making unauthorized
use of, or has in the past twelve months infringed or made unauthorized use of, any intellectual property rights owned or used by the
Target Company. The Target Company is not infringing or making unauthorized use of, nor has it in the past twelve months infringed or
made unauthorized use of, any intellectual property rights owned or used by a third party.
Information Technologies:
6.2.39 All of the business IT, as set forth in Schedule
6.2.39, used in the twelve months prior to the date of the Agreement is owned by or validly licensed (on written terms) to the Target
Company and is in good repair and condition.
6.2.40 There are, and since January 1, 2021 there have
been, no performance reductions or breakdowns of, or logical or physical intrusions to, any information technology or loss of data which
have had (or are having) a material adverse effect on the use of the business IT by the Target Company.
6.2.41 Disaster recovery plans are in place and are
appropriate and adequate to ensure that the Business IT and the data stored on it (“Data”) can be replaced or substituted
without disruption to the Company in the event of a failure of any part of the business IT. All Data has been regularly archived in properly
stored, catalogued and secure hard copy form, to which, following the Closing, Party A will have unimpeded access.
Environmental, social, and governance
(“ESG”)-related:
6.2.42 The
Target Company and each Subsidiary has complied with relevant laws and regulations (including but not limited to laws and regulations
relating to medical institutions, environmental protection, labor, anti-unfair competition and anti-commercial bribery) in its corporate
operations and all aspects of the Target Company’s and each of its subsidiary’ business are in compliance with the requirements
of laws and government orders.
6.2.43 The full names of and offices held by each person
who is a director of the Target Company, as set forth in Schedule 6.2.43, have been provided to Party A. No other person is a director
or shadow director of the Target Company or any of its subsidiaries.
6.2.44 The Target Company has not entered into any informal
or formal agreement to amend or change the terms or conditions of employment or engagement of any of the officers or employees of the
Target Company or any of its consolidated entities (whether such amendment or change is to take the effect prior to or after Closing).
6.2.45 The Company is in compliance with in all material
respects all employment legislation applicable in relation to the employees and has not done any act or made any omission and is not aware
of any act or omission of any of the employees within the last five years which could give rise to any material cause of action by any
employee under or by virtue of any such employment legislation. There are no material breaches by the Company within the last five years
of any term or condition of employment or engagement or agreement (whether express, implied, oral or in writing) of any employee.
6.2.46 The Target Company has fully complied with in
all material respects and has not acted in contravention of the applicable laws, regulations and requirements in respect of social security,
housing provident funds or other mandatory pension schemes.
Taxation
6.2.47 The Target Company and each of its subsidiary
have paid all taxes on time and in full, and all tax statements, reports and forms required to be submitted by or on behalf of such entities
(“Tax Statements”) have been provided to the appropriate governmental authorities in a timely manner, and all Tax Statements
accurately reflected, in all material respects, the tax liability of the Target Company or its consolidated for the period, property or
event recorded. All taxes, including the taxes in the Tax Statement or taxes deemed by any governmental authority to be payable by the
Target Company or any subsidiaries, or levied on the Target Company’s or any of its subsidiaries’ property, assets, capital,
turnover or income, have been paid in full (except for taxes adequately reserved in the relevant Accounts). There are no pending or potential
inspections, inquiries, or audits by any regulatory authorities against the Target Company or any of its subsidiaries. All taxes required
by law to be withheld by the Target Company or any of its subsidiaries have been withheld and submitted to the competent governmental
authorities or are in the proper custody of the Target Company or its relevant consolidate entities. The Target Company has no other tax
liabilities or obligations of any nature unless such tax liabilities or obligations are (i) adequately reflected in the Accounts or (ii)
incurred in the ordinary course of business activities since the Accounts Date (as defined below). There is no dispute or disagreement,
nor is any contemplated, with any Tax Authority regarding tax recoverable from the Target Company or regarding the availability of any
relief from tax to the Target Company.
6.2.48 No act or transaction has been or will, on or
before the Closing, be effected by the Target Company, the Original Shareholders or any other person (including the sale of the Purchased
Shares), in consequence of which the Target Company is or may be held liable for tax primarily chargeable against some other person.
Insolvency:
6.2.49 The
business operations of the Target Company and its subsidiaries are normal and there is no court judgment in the PRC declaring the Target
Company or any of its subsidiaries bankrupt or insolvent (or similar circumstances). There are no for insolvency or bankruptcy (or similar
circumstances) and no third party is about to commence such proceedings. There are no requests for termination, liquidation or dissolution
of the Target Company or any of its consolidated entities, and no resolutions for liquidation or dissolution have been passed. The Target
Company and its consolidated entities are able to meet its obligations as they come due and its assets are sufficient to satisfy all of
their liabilities.
Trading and Contracts:
6.2.50 The Target Company has provided to the Party
A complete and accurate copies of each contract, as set forth in Schedule 6.2.50, to which the Target Company is a party or subject to
and of any other arrangement or understanding (“Material Contracts”) which:
| (a) | is
not in the ordinary course of business; |
| (b) | is
not on an arm’s length basis; |
| (c) | is
long-term (meaning unlikely to be performed in full in accordance with its terms within six
months of its commencement or being incapable of termination without compensation by the
Target Company in six months or less); |
| (e) | cannot
readily be performed by the Target Company without undue or unusual expenditure of money
or effort; |
| (f) | restricts
its freedom to carry on its business in any part of the world in such manner as it thinks
fit; |
| (g) | requires
or is likely to require consideration payable by the Target Company or to the Target Company
for the material contract or which obliges the Target Company to take any minimum purchases; |
| (h) | involves
or is likely to involve the supply of goods or services by the Target Company, the aggregate
sales value of which will represent a material portion of the revenue of that Target Company
(in the case of a customer of the Target Company) or of the goods or services supplied to
the Target Company (in the case of a supplier to the Target Company) for the year ended on
the date of this Agreement, where the contract is in writing; |
| (i) | requires
or is likely to require the Target Company to pay any commission or any of its subsidiaries,
finder’s fee, brokerage or similar payment; |
| (j) | provides
for payments to or by the Target Company based on sales, profits or other benchmarks; |
| (k) | involves
an agency, distributorship or management relationship; |
| (l) | is
a joint venture, consortium, partnership or other contract, arrangement or understanding
under which it participates with any other person in any business; |
| (m) | can
be terminated upon a change of control of the company or would entitle any party upon a change
of control of the Company to exercise rights not otherwise available to such party; |
| (n) | is
material to the carrying on of the business and the operations of the Target Company whether
or not it is material in terms of expenditure or revenue expectations; |
| (o) | any
VIE contracts in respect of the Target Company; or |
| (p) | involves
liabilities which may fluctuate in accordance with an index, or notes of currency exchange
or interest or movements in the price of any securities or commodities or the credit rating
of any reference person. |
6.2.51 All
Material Contracts of the Target Company and are legally valid, binding and enforceable on the parties thereto. The Target Company has
complied with or performed under such agreements, there is no material breach, cancellation or invalidity of such agreements and there
is no ground for rescission, avoidance or repudiation of any Material Contracts and the Target Company has not given or received any notice
of any attempt to terminate or not to renew such agreements.
As of the Closing Date, the Target Company has not received
any notice from the Target Company’s major customers, suppliers and partners, as set forth in Schedule 6.2.51, indicating that at
any time after the Closing Date they will stop the use of the Target Company’s products or services or other business relationships
with the Target Company, or that they will materially reduce the use of the products or services or change the terms of the business relationship.
The Target Company also has no reason to believe that the above situation may occur or that the proposed transaction hereunder will lead
to the occurrence of the above situation.
There is no legal or governmental proceeding, inquiry
or investigation pending against the Target Company or any of its subsidiaries and their shareholders challenging the validity of any
of VIE contracts, and no such proceeding, inquiry or investigation is threatened in any jurisdiction.
6.2.52 There are no outstanding agreements or arrangements
to which the Target Company is a party which (1) require the allotment or issue of any shares, equity, debentures or other securities
of the Target Company now or at any time in the future; (2) require the entering into of any joint venture, partnership or profit-sharing
(or loss-sharing) agreement or arrangement; (3) require the granting to any person of a purchase of material assets or property of
the Target Company or any (2) enter into any joint venture, partnership or profit -sharing (or loss -sharing) agreement or arrangement;
(3) enter into any contract, agreement or other arrangement granting to any person any preemptive right to purchase material assets or
property or any equity interest in the Target Company (other than a purchase made in the ordinary course of business consistent with past
practice); or (4) enter into any other agreement or arrangement that has or may have a material effect on the financial or business condition
or prospects of the Target Company.
Agreements between the Target Company and the Original Shareholders:
6.2.53 Between
the Original Shareholders, directors, officers or employees of the Target Company or their respective spouses or children, or any affiliates
of any of the foregoing (the “Sellers Group”) and the Target Company, (i) there is no agreement, undertaking or any
transaction that have been, are being, or are proposed to be conducted; (ii) there is no direct or indirect, unilateral or bidirectional,
debt (except for wages yet to be paid consistent with prior practice), or commitment to provide loans or guarantees; (iii) no member of
the Seller Group directly or indirectly enjoys interests in or have significant business relationships with the agreement of the Target
Company and the agreements signed by the Target Company; (iv) no member of the Sellers’ Group has direct or indirect ownership interests
(except for those who obtain no more than 1% of shares through the open securities market) in any enterprise or company associated with,
having business relationships with, or competing with the Target Company, or control such enterprise through loans, agreements, or other
means, or serve as an executive, director, or partnership in such enterprise.
Properties:
6.2.54 The
particulars of the properties owned or occupied by the Target Company (the “Properties”) have been provided to Party
A, as set forth in Schedule 6.2.54, and are true and accurate and not misleading. Except the Properties, the Company has no other estate
or interest in or over land or premises and does not occupy any other land or premises and has not entered into any agreement to acquire
or dispose of any land or premises or any estate or interest therein which has not been completed.
6.2.55 Except for the leased real estate, the Target
Company owns a complete, market-valued rights to all the Properties, rights and assets and there is no guarantee, lease, sub-lease, tenancy,
licence or right of occupation, rent-charge, exception, reservation, right, easement, quasi-easement or privilege (or agreement for any
of the same) in favor of a third party (other than the Target Company) or other Encumbrance on such rights, and is in possession of all
relevant title documents in respect of such Property and is solely legally and beneficially entitled to and has good and marketable title
to and exclusive occupation of such Property.
6.2.56 The leases, sub-leases, tenancies, licences or
agreements for any of the same under which any of the Properties held are valid and subsisting against all persons, including any person
in whom any superior estate or interest is vested.
6.2.57 None of the Properties or any part thereof is
affected by any of the following matters or is to the best knowledge of the Original Shareholders likely to become so affected: (a) any
outstanding dispute, notice or complaint or any exception, reservation, right, covenant, restriction or condition which is of an unusual
nature or which affects or might in the future affect the use of any of the Properties for the purpose for which it is now used (the “Current
Use”); or (b) any outstanding claim or Liability under all relevant laws.
6.2.58 All restrictions, conditions and covenants (including
any imposed by or pursuant to any lease, sub-lease, tenancy or agreement for any of the same and whether the Target Company is the landlord
or tenant thereunder and any arising in relation to any superior title) affecting any of the Properties have been observed and performed
and no notice of any material breach of any of the same has been received or is to the Original Shareholders’ best knowledge likely
to be received.
6.2.59 The current use of the Properties and all equipment
therein and the conduct of any business therein complies in all material respects with all relevant laws and all necessary governmental
authorizations required under any law have been obtained.
6.2.60 Except in relation to the Properties, the Target
Company has no liability arising out of the conveyance, transfer, lease, sublease, tenancy, licence, agreement or other document relating
to land or premises or an estate or interest in or over land or premises, including leasehold premises assigned or otherwise disposed
of.
Quality of Disclosure:
6.2.61 Except
as stated in Schedule 6.2.61, there is no pre-payments, significant advertisement, finder’s fee, power of attorney and suretyship,
and affiliate transactions by the Target Company and the Schedule 6.2.61 is true and accurate and not misleading.
6.2.62 Except
as stated in Schedule 6.2.62, there is no other main products or services by the Target Company and the Schedule 6.2.62 is true and accurate
and not misleading.
6.2.63 Any
information and facts related to the Target Company, any of its subsidiaries, or their business which are material for disclosure to a
purchaser of the Purchased Share on the terms of this Agreement have been fully disclosed to Party A, and there is no untrue statement
of a material fact, nor is there is omission of a material fact that is necessary make the statements not misleading. This Agreement,
any other transaction documents, or any delivery documents delivered to Party A under this Agreement or any other transaction documents,
or any other information, in written or electronic form, provided to Party A or its advisers by management shareholders, the Target Company
itself or by proxy in the course of Party A’s due diligence and negotiations regarding this Agreement and other transaction documents,
do not contain any untrue, inaccurate, or incomplete, or misleading information, nor do they omit any information that makes the information
provided in such documents untrue, inaccurate, incomplete, or misleading. All estimates, forecasts, expressions of opinion, statements
of intention and expectation related to the aforesaid information which have been provided to Party A are made on reasonable grounds and
are truly and honestly held and have been made after due and careful enquiry and consideration of all relevant circumstances.
6.2.64 The
statements and warranties shall be made separately. Each statement and warranty shall be deemed to be a separate statement or warranty,
and (unless there is a clear provision to the contrary) shall not be subject to any limitations due to reference to or induction of the
terms of any other statement or warranty or any other provision hereof.
Article 7 Confidentiality
7.1 Confidentiality
Obligation
Each party undertakes and shall promote its affiliates,
their officers, directors, employees, agents, representatives, accountants, legal advisors, and other professional advisors to regard
all of the following information as confidential information and keep it confidential (do not disclose the information or provide any
party with access to such information to): (i) this Agreement and the terms of other transaction documents and negotiations regarding
this Agreement and any other transaction documents; and (ii) all other confidential or proprietary information provided by other parties
relating to business secrets, technology, copyrights, patents, trademarks, pricing and marketing plans, detailed information of customers
and consultants, business plans, business acquisition plans, new personnel recruitment plans, and all other parties and their respective
affiliates.
7.2 The confidentiality
obligation stipulated in this article shall not apply to the following situations:
7.2.1 Information
independently developed by a third party concerned or obtained from a third party, provided that such third party has the right to disclose
such information;
7.2.2 The disclosure
of information is required by binding judgments, orders, requirements, rules or regulations of laws, courts or government departments
or relevant stock exchanges, provided that Party A shall be notified of such requirement in advance within a reasonable time prior to
disclosure;
7.2.3 Information
disclosed in confidence to a party’s professional advisers or information that needs to be reasonably disclosed for the purpose
of evaluating the party’s investment in the Target Company;
7.2.4 Information
disclosed to any prospective lender or investor with the prior written consent of Party A and the Target Company;
7.2.5 Information
that becomes freely available in the public domain (not as a result of breach of this provision);
7.2.6 Information
disclosed by Party A or the Target Company to any bona fide potential investors (including prospective buyers of transaction) of any equity
the Target Company, provided that such potential investors shall provide a confidentiality commitment in favor of the Target Company.
7.3 No publicity
Each Party shall not and shall ensure that its affiliates
shall not make any announcement or notice in respect of the existence or content of this Agreement and any other transaction documents
without Party A’s prior written approval. The aforementioned provisions shall not affect any announcement or notice required by
any law or regulatory authority or relevant stock exchange, provided that the party under the obligation to issue such announcement or
notice shall, within a reasonable and feasible range, consult with Party A before complying with such obligation.
Article 8 Liabilities
Any and all liabilities incurred by, or arising from
the operations or any action of, the Target Company or any of its consolidated entities prior to the Closing, shall be borne by the Original
Shareholders. Any obligations determined by proposals, notices, orders, judgments, decisions, etc. made by relevant administrative or
judicial departments against the Target Company for its behavior prior to the Closing shall also be borne by the Original Shareholders.
After the Closing, Party A shall enjoy and bear all the debts and credits generated by the operation and management of the Target Company.
Article 9 Others
9.1 Liability for Breach
9.1.1 If one party fails to perform or suspends its
obligations under this Agreement, or if any statements and guarantees made by the party are untrue or inaccurate in any material respect,
the party shall be deemed to have breached this Agreement.
9.1.2 The defaulting party shall commence remedying
the non-performance of the Agreement within seven (7) days after receiving a written notice from the other party in respect of such breach
(which must reasonably and specifically describe the nature of the breach) and shall complete the remedy within thirty (30) days after
receiving such a notice. Furthermore, if any party’s breach of this Agreement causes any expense, liabilities, or losses to be incurred
by the other party, the defaulting party shall compensate the complying party for any of the foregoing expenses, liabilities, or losses
(including but not limited to interest and attorney’s fees or losses as a result of the breach, but excluding any indirect losses)
and shall hold the complying party harmless from any harm.
9.1.3 The Original Shareholders shall jointly and severally
indemnify Party A and Target Company from and against all losses suffered or incurred by Party A and the Target Company as a consequence
of or which would not have arisen but for:
| (a) | any
breach or inaccuracy of any representation or warranty made by either Original Shareholders
in this Agreement or any certificate or other document delivered by the Original Shareholders
pursuant to this Agreement ; |
| (b) | any
failure by any Original Shareholder to perform any of his/her obligations in this Agreement; |
| (c) | any
breach or non-compliance with any applicable law by the Target Company or the Original Shareholders
on or before Closing; and |
| (d) | any
liability for tax of the Target Company (i) resulting from or by reference to any event,
state of affairs, payment, transaction, act, omission or occurrence of whatever nature occurring
on or before Closing, (ii) resulting from the Transaction, (iii) in respect of any gross
receipts, income, profits or gains earned, accrued or received on or before Closing, or (iv)
resulting from potential denial of corporate income tax deduction on personal expenses on
the basis they were not incurred for the purposes of gaining or producing income. |
The remedies provided in this Article 9.1.3 shall not be exclusive of or
limit any other remedies that may be available to Party A. For the purposes of this Article 9.1.3, Party A contracts on its own behalf
and also as trustee for the Target Company and accordingly may take action in that capacity to recover on behalf of the Target Company.
9.2 Effectiveness and Term
This Agreement shall come into effect on the date of
signature and shall have full binding force on all parties to this Agreement.
9.3 Termination
9.3.1 Notwithstanding any provision to the contrary
in this Agreement or any other transaction document, this Agreement may be terminated prior to the Closing Date in the following circumstances:
(1) by either party: Closing has not occurred within
180 days after the signing of this Agreement, each party may terminate this Agreement by written notice to the other parties; provided,
however, that if the failure to achieve Closing on or before such date is caused or contributed to by any party’s failure to perform
any of its obligations under this Agreement, such party shall not be entitled to terminate this Agreement pursuant to this Section 9.3.2.
(2) by Party A upon (i) any occurrence of any Material
Adverse Change, (ii) any statement or warranty of the Target Company or the Original Shareholders contained in this Agreement is untrue
or inaccurate or (iii) the Target Company engaging in an overall transfer of its interests to creditors or initiates or is subject to
any legal proceedings that result in the declaration of the Target Company’s bankruptcy or the liquidation, closure, restructuring,
or reorganization of its debt under any law;
(3) This Agreement may be terminated with the unanimous
written consent of all parties;
(4) If the Target company or Party B materially breaches
any provision of this Agreement or any other transaction document and fails to remedy such breach within thirty (30) days after receipt
of a notice of default from Party A, and which such breach has resulted in a Material Adverse Change, Party A may terminate this Agreement
and abandon the proposed transaction;
(5) If Party A materially breaches any provision of
this Agreement or any other transaction document and fails to remedy such breach within thirty (30) days after receipt of a notice of
default from the Target Company or Party B, and which such breach has resulted in a Material Adverse Change, the Target Company may terminate
this Agreement and abandon the proposed transaction;
(6) If any government department issues an order, decree,
or ruling, or has taken any other action that restricts, prevents, or prohibits the proposed Transaction under this Agreement in other
ways, and such order, decree, ruling, or other action is finalized and not subject to appeal, review, or appeal, then either parties may
terminate this Agreement.
In the event of unilateral termination of this Agreement,
the terminating party shall immediately send written notice to the other parties, and this Agreement shall terminate upon receipt of the
notice by the other parties.
9.3.2 If this Agreement is terminated in accordance
with the provisions of Section 9.3.1 above, this Agreement shall terminate and no longer have legal effect. However, the rights and obligations
of the parties under this Agreement shall continue to be valid and binding after the termination of this Agreement. Any remedies arising
from any breach of this Agreement prior to the termination of this Agreement or the dissolution and liquidation of the Target Company
shall continue to be fully effective. Except for any liability arising from any breach of this Agreement by a party, no party shall be
liable for any other obligations to any other party arising from the termination of this Agreement.
9.4 Notice
All notices, requirements, or other communications sent
out, delivered or made under this Agreement shall be in written form and delivered or sent to the following addresses (or other addresses
notified by the recipient in written form ten (10) days in advance) or email addresses of the relevant parties.
9.5 Applicable Laws
This Agreement and any obligation arising out of or
in connection with it shall be governed by and construed in accordance with Hong Kong law.
9.6 Dispute Resolution
(a) Any disputes, controversy, difference or claim arising
out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or
any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration
administered by the Hong Kong international Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in
force when the Notice of Arbitration is submitted.
(b) The seat of arbitration shall be Hong Kong.
(c) The number of arbitrators shall be three.
(d) The arbitration proceedings shall be conducted in
English.
(e) Any party may seek interim injunctive relief, provisional
rulings or other interim relief from a court of competent jurisdiction, both before and after the arbitrators have been appointed, at
any time up until the arbitrators have made their final award.
9.7 Entire Agreement
This Agreement constitutes the complete agreement between
the parties with respect to the contemplated equity transfer and capital increase matters, and shall supersede any and all prior oral
or written agreements, letters of intent, memoranda, or Agreements of the parties relating thereto, and shall take precedence over any
subsequent agreements signed solely for the purpose of completing the equity transfer and capital increase related government approvals.
9.8 Successors and Assigns
Subject to the provisions of this Agreement, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall
ensure the interests of the successors and permitted assigns. In the event of such succession or assignment, the parties shall cause the
successors and permitted assigns to execute an agreement recognized by all parties.
9.9 Separability
If any provision or provisions of this Agreement is
adjudicated invalid, illegal, or unenforceable in any respect under any applicable law or regulation, such invalidity, illegality, or
unenforceability shall not affect or impair the validity, legality, or enforceability of the remaining provisions of this Agreement. The
parties shall mutually negotiate new provisions that are lawful, valid, acceptable, and consistent with the original intent of the parties
in this Agreement to replace such invalid, illegal, or unenforceable provisions.
9.10 Further Assurance
Each party agrees to execute timely documents and take
further actions as may be reasonably necessary or practicable to perform or enforce the provisions and purposes of this Agreement.
9.11 Waiver/Amendment
The failure or delay by either party to exercise any
right, power, or remedy (individually, a “Right”) relating to this Agreement shall not constitute a waiver of such Right,
and the exercise or partial exercise of any Right shall not preclude any further or additional exercise of such Right or the exercise
of any other Right granted by this Agreement, which Rights are cumulative and not exclusive of any other rights (whether statutory or
otherwise) that may be waived expressly or impliedly for any breach of this Agreement shall not constitute a waiver of any subsequent
breach. Any amendment or modification to this Agreement (including any revision or amendment hereto) shall be invalid unless in writing
and signed by authorized representatives of all parties and submitted to and approved by the relevant governmental authorities, if required.
9.12 Expenses
The Original Shareholders shall bear all expenses related
to this transaction, including but not limited to fees for external lawyers, accountants, and investment advisors, as well as any registration,
filing, or approval fees required by any government departments for the establishment, change, or other requirements of the Target Company.
9.13 Taxes
Unless otherwise agreed by the parties, each party shall
bear the taxes and fees incurred in connection with the execution and performance of this Agreement and any other agreements, documents,
or instruments under this Agreement in accordance with applicable laws.
For the avoidance of doubt, the Original Shareholders
shall bear all taxes, including stamp duty or other documentary or registration duties or taxes and capital gain or income taxes (including
in each case any related interest or penalties) arising as a result of the entry into of this Agreement or the sale of the Purchased Shares.
9.14 Any amendment, change, or supplement to this
Agreement shall be agreed upon by all parties in writing and shall be effective upon being formally signed by all parties. Any matters
not covered in this Agreement shall be supplemented by the parties through a separate agreement.
This Agreement has been signed by all parties on the
date first written above, hereby certified.
(No text follows below)
(This page has no text and is the signature
page of the Equity Acquisition Agreement.)
Party A: Infobird Co., Ltd
Director or Authorized Representative (Signature):
Party B:
SHANGRI-LA TRADING LIMITED
Director or Authorized Representative (Signature):
Party C:
Pure Tech Global Limited
Director or Authorized Representative (Signature):
Party D :
Pinmu Century (Beijing) Marketing Technology Co., Ltd
Director or Authorized Representative (Signature):
Party D:
Zhenxi Brand Marketing Consulting (Shanghai) Centre
Director or Authorized Representative (Signature):
33
Infobird (NASDAQ:IFBD)
Historical Stock Chart
From Oct 2024 to Nov 2024
Infobird (NASDAQ:IFBD)
Historical Stock Chart
From Nov 2023 to Nov 2024
