J & Friends Holdings Ltd 6-K, filed Sep 5, 2025
J & Friends Holdings Ltd (JF)
About this 6-K
J & Friends Holdings Ltd filed this 6-K on September 5, 2025.
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 September 2025
Commission File Number: 001-38712
Pintec Technology Holdings Limited
4/F, Vanke Times Center,
Chaoyang Road, Chaoyang District, Beijing
The People’s Republic of China
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F x Form 40-F ¨
Exhibits
Signature
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.
| Pintec Technology Holdings Limited | |||
| By: | /s/ Xin Yang | ||
| Name: | Xin Yang | ||
| Title: | Chief Financial Officer | ||
Date: September 5, 2025
Exhibit 99.1
PINTEC Announces Private Placement of Class A
Ordinary Shares in Exchange of
Ordinary Shares of ZIITECH PTY LTD
BEIJING, September 5, 2025 /PRNewswire/ -- Pintec Technology Holdings Limited (Nasdaq: PT) (“PINTEC” or the “Company”), a leading independent technology platform enabling financial services in China, today announced that it entered into a share transfer agreement with ZIITECH PTY LTD (“ZIITECH”) and certain shareholders of ZIITECH (the “Transferors”) on September 3, 2025. Under the share transfer agreement, the Transferors agree to transfer an aggregate of 715,521 ordinary shares of ZIITECH to the Company (the “Transfer”), in exchange for an aggregate of 83,726,789 Class A ordinary shares of the Company. In connection with the Transfer, the Company has entered into a share purchase agreement with each of the Transferors on September 3, 2025, under which the Company agrees to sell and issue an aggregate of 83,726,789 Class A ordinary shares of the Company to such Transferors or persons designated by such Transferors (together with the Transfer, the “Exchange”).
The closings of the transactions are subject to the satisfaction of customary closing conditions and are expected to take place in September 2025. Upon closing, PINTEC will hold 715,521 ordinary shares of ZIITECH, representing approximately 25% of ZIITECH’s total issued and outstanding shares, and will consolidate ZIITECH’s financial statements pursuant to a shareholders’ agreement.
The foregoing description of the Exchange, the share transfer agreement and the share purchase agreement does not purport to be complete and is qualified in its entirety by the full text of the forms of share transfer agreement, share purchase agreement and shareholders’ agreement attached as exhibits to a Current Report on Form 6-K to be filed with the U.S. Securities and Exchange Commission.
The sale and issuance of the Class A ordinary shares are exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) pursuant to Section 4(a)(2) of the Securities Act regarding transactions not involving a public offering and is made in reliance on, and in compliance with, Regulation D and/or Regulation S under the Securities Act, as applicable.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any offer, solicitation or sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful.
Safe Harbor Statement
This press release contains forward-looking statements. These statements constitute “forward-looking” statements within the meaning of 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,” “anticipates,” “future,” “intends,” “plans,” “believes,” “estimates,” “target,” “confident” and similar statements. Among other things, the quotations from management in this announcement, as well as Pintec’s strategic and operational plans, contain forward-looking statements. Pintec may also make written or oral forward-looking statements in its periodic reports to the U.S. Securities and Exchange Commission, in its annual report to shareholders, in press releases and other written materials and in oral statements made by its officers, directors or employees to third parties. Such statements are based upon management's current expectations and current market and operating conditions, and relate to events that involve known or unknown risks, uncertainties and other factors, all of which are difficult to predict and many of which are beyond the Company's control. Forward-looking statements involve inherent risks, uncertainties and other factors that could cause actual results to differ materially from those contained in any such statements. Potential risks and uncertainties include, but are not limited to, the Company’s limited operating history, regulatory uncertainties relating to the markets and industries where the Company operates, and the need to further diversify its financial partners, the Company’s reliance on a limited number of business partners, the impact of current or future PRC laws or regulations on wealth management financial products, and the Company's ability to meet the standards necessary to maintain the listing of its ADSs on the Nasdaq Global Market, including its ability to cure any non-compliance with Nasdaq's continued listing criteria. Further information regarding these and other risks, uncertainties or factors is included in the Company’s filings with the U.S. Securities and Exchange Commission. All information provided in this press release is as of the date of this press release, and the Company does not undertake any obligation to update any forward-looking statement as a result of new information, future events or otherwise, except as required under applicable law.
About Pintec
Pintec is a Nasdaq-listed company providing technology enabled financial and digital services to micro, small and medium enterprises in China. It connects business partners and financial partners on its open platform and enables them to provide financial services to end users efficiently and effectively. Pintec empowers its business partners by providing them with the capability to add a financing option to their product offerings. It helps its financial partners adapt to the new digital economy by enabling them to access the online population that they could not otherwise reach efficiently or effectively. Pintec continues to deliver exceptional digitization services, diversified financial products, and best-in-class solutions with innovative technology, to solidify its relationship with its business partners and satisfy its clients’ needs. Pintec currently holds internet micro lending license, fund distribution license, insurance brokerage license and enterprise credit investigation license in China. For more information, please visit ir.Pintec.com.
For further information, please contact:
Pintec Technology Holdings Ltd.
Phone: +86 (10) 6506-0227
E-mail: ir@pintec.com
Exhibit 99.2
SHARE TRANSFER AGREEMENT
THIS SHARE TRANSFER AGREEMENT (the “Agreement”) is made and entered into as of ____________, 2025 (“Execution Date”) by and among:
| 1. | [*]; |
| 2. | ZIITECH PTY LTD (ACN 635 021 779), a proprietary company incorporated in Victoria, Australia (the “Company”); |
| 3. | Pintec Technology Holdings Limited, a public company incorporated in Cayman Islands and is currently listed on NASDAQ (the “PT” or the “Transferee”); |
The Company, Australian Subsidiary, Singapore Company, New Zealand Company 1, New Zealand Company 2 and other Person directly or indirectly controlled by them, including the corporations to be established or acquired after the date hereof collectively, are referred to collectively herein as the “Group Companies”, and each a “Group Company”.
RECITALS
A. As of the date hereof, each Transferor is a shareholder of the Company;
B. The Transferors intend to sell an aggregate of 715,521 ordinary shares of the Company (the “Transferred Shares”) held by them to the Transferee, and the Transferee intends to purchase the Transferred Shares from the Transferor, on the terms and conditions set forth in this Agreement (the “Transfer”);
C. The Transferee intends to enter into a Share Purchase Agreement in the form, or substantially in the same form, of Exhibit A with each Transferor to sell and issue to each Transferor certain number of ordinary shares of the Transferee (“PT Shares”) as such Transferor’s consideration for the Transfer (each a “Share Purchase Agreement”);
D. In this Agreement, unless the context otherwise requires, capitalized terms used herein shall have the meanings ascribed to them in ARTICLE 1 hereto.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
Definitions
In this Agreement the following words and expressions shall have the following meanings:
“Business Day” means any day that is not a Saturday, Sunday, legal holiday or other day on which commercial banks are required or authorized by law to be closed in the PRC, Hong Kong, Cayman Islands or Melbourne, Victoria, Australia.
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“Deed of Variation of Constitution” means a deed of variation of constitution in the form, or substantially in the same form, of Exhibit B.
“Encumbrances” means any form of legal, equitable or security interests, including but not limited to any mortgage, assignment of receivables, debenture, lien, charge, pledge, adverse claim, rent-charge, claim, option, restriction, security interest, hypothecation and any “security interest” as defined in sections 12(1) or (2) of the Personal Property Securities Act 2009 (Cth) and any other encumbrance or condition whatsoever or any other arrangements to create any of them or allow them to exist or otherwise having similar effect.
“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China.
“PRC” means the People’s Republic of China, but solely for the purposes of this Agreement, excluding Hong Kong, the Macau Special Administrative Region and the islands of Taiwan.
“Shareholders Agreement” means the shareholders agreement in force at the date of this Agreement between the shareholders and the Company in the form, or substantially in the same form, of Exhibit C.
“Transaction Documents” means this Agreement, the Shareholders Agreement, the Deed of Variation of Constitution, each Share Purchase Agreement and each of the other agreements and documents delivered or otherwise required in connection with implementing the transactions contemplated by any of the foregoing.
ARTICLE II
AGREEMENT TO PURCHASE AND SELL SHARES
| SECTION2.01 | Agreement to Purchase and Sell Transferred Shares. |
Subject to the terms and conditions set forth herein, each Transferor agrees to sell, assign, transfer and deliver all its right, title and interest in and to all of the Transferred Shares owned by it to the Transferee, free and clear of all Encumbrances, and the Transferee agrees to purchase the Transferred Shares at the consideration of newly issuance of PT Shares to the Transferors (the “Transfer Consideration”) as applicable, as set forth opposite the name of each Transferor in Schedule I for its portion of Transferred Shares upon the Closing (as defined in the Section 3.01 below), and having the rights, privileges and restrictions as set forth in the Transaction Documents (as defined below).
| SECTION2.02 | Post-Closing Shareholding Structure. |
After the Closing as defined below, the post-Closing shareholding structure of the Company (on a fully diluted and as converted basis) immediately after the Closing is as set forth in Schedule II hereto, and in any circumstance, the Transferee shall hold 25% of the then issued shares of the Company (on a fully diluted and as-converted basis) immediately after the Closing.
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ARTICLE III
CLOSINGS; DELIVERY
SECTION3.01 Closing.
The consummation of Transfer pursuant to ARTICLE I (the “Closing”, the date of which is referred herein as the “Closing Date”) shall take place via exchange of documents and signatures remotely within ten (10) Business Days after all Closing conditions specified in ARTICLE VI hereof have been waived by the Transferee or satisfied (other than those conditions to be satisfied at the Closing, but subject to the satisfaction or waiver thereof at the Closing), or at such other time as the Transferors and Transferee shall agree in writing.
The transfer of Transferred Shares by each of the Transferors as set forth in ARTICLE II shall be a separate and independent transaction, and may be consummated or terminated separately and severally in accordance with the terms of this Agreement. Any reference to the Transferors in this Agreement shall, where the context permits, mean each of the Transferor severally and in the event that a Transferor fails to or decides not to close the transfer of the applicable Transferred Shares contemplated hereunder, the relevant provisions under the Transaction Documents shall be adjusted accordingly as appropriate.
SECTION3.02 Delivery.
At the Closing, in addition to any items the delivery of which is made an express condition to the Transferee’s obligations at the Closing pursuant to Article VI,
(a) each Transferor shall surrender to the Company for cancellation its original share certificate(s) representing all of the Transferred Shares being transferred (or certificates of indemnity for lost or destroyed certificates in agreed form), and the Company shall, and each Transferor shall deliver the following items to the Transferee:
| (i) | duly executed transfers signed by each Transferor in favour of the Transferee of the Transferred Shares; |
| (ii) | releases and discharges in respect of all Encumbrances over any of the Transferred Shares, including (where relevant) an undertaking to remove all registrations in relation to such Encumbrances from the Personal Property Securities Register established under the PPSA within 2 weeks of the Completion Date, duly executed by the relevant holders of those Encumbrances and in a form acceptable to the Transferee (acting reasonably); |
| (iii) | a copy of the resolution of the directors of the Company that, subject to, and with effect from, Closing: |
| (A) | the transfer of all Transferred Shares be registered; |
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| (B) | each Transferor’s existing share certificates in respect of their Transferred Shares be cancelled; |
| (C) | new share certificates be issued in the name of the Transferee in respect of all Transferred Shares; |
| (D) | the directors designated by the Transferee be appointed to the board of the Company; and |
| (E) | any director of the Company be authorized to certify on behalf of the Company any document under this Agreement. |
| (iv) | a copy of the updated register of members of the Company certified by a director of the Company on behalf of the Company, reflecting the Transferee as the holder of all the Transferred Shares and otherwise consistent with the post-Closing shareholding structure of the Company immediately after the Closing as set forth in Schedule II hereto; |
| (v) | a copy of the share certificate certified by a director of the Company on behalf of the Company, representing the Transferred Shares held by the Transferee, with the original (duly executed for and on behalf of the Company) to be delivered to the Transferee within fifteen (15) Business Days after the Closing; |
| (vi) | a copy of the updated register of directors of the Company certified by a director of the Company on behalf of the Company, reflecting the appointment of the directors designated by the Transferee; and |
| (vii) | waivers pursuant to SECTION6.04 (ii), executed by the existing shareholders. |
(b) the Transferee shall deliver to each Transferor:
| (i) | an extract of the updated register of members of the Company reflecting the allotment and issuance of the PT Shares listed in Schedule I; and |
| (ii) | counterparts of the duly executed transfers in the form, or substantially in the same form, of Exhibit G, of the Transferred Shares. |
SECTION3.03 Obligations independent.
The obligations of the parties under Section 3.02 are interdependent. If an action required to be performed at Completion does not take place, then without prejudice to any rights available to a party as a consequence:
(a) if the failure is a failure by:
| (i) | a Transferor, the Transferee has no obligation to perform any action; or |
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| (ii) | the Transferee, the Transferors have no obligation to perform any action; and |
(b) to the extent that any actions have already been taken, the parties must do everything reasonably required to reverse those actions if requested to do so in writing by a party.
SECTION3.04 Simultaneous actions at Completion.
Unless otherwise stated, all actions required to be performed by a party at Completion are taken to have occurred simultaneously on the Completion Date and no delivery is taken to have been made until all deliveries under this Agreement due to be made are made.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS AND THE GROUP COMPANIES
The Transferors and the Group Companies hereby jointly and severally represent and warrant to the Transferee, subject to the disclosures set forth in the Disclosure Schedule (the “Disclosure Schedule”) attached to this Agreement as Exhibit D (which Disclosure Schedule shall be deemed to be representations and warranties to the Transferee), as of the date hereof, as follows.
SECTION4.01 Organization, Standing and Qualification.
Each Group Company is duly incorporated or organized, validly existing, not insolvent and in good standing (or equivalent status in the relevant jurisdiction) under, and by virtue of, the laws of the place of its incorporation or establishment and has all requisite power and authority to own its properties and assets and to carry on its business as now conducted and as proposed to be conducted, and to perform each of its obligations hereunder and under any agreement contemplated hereunder to which it is a party. Each Group Company is qualified to do business and is in good standing (or equivalent status in the relevant jurisdiction) in each jurisdiction where failure to be so qualified would have a material adverse effect on the condition (financial or otherwise), assets relating to, or results of operation of or business (as presently conducted and proposed to be conducted) of any Group Company (a “Material Adverse Effect”).
SECTION4.02 Capitalization.
(a) Part A of Schedule II contains accurate details of the share capital of the Company. The share capital of the Company consists of the following:
| (i) | Ordinary Shares. Immediately prior to the Closing, a total of 2,862,085 fully paid ordinary shares of the Company (the “Ordinary Shares”), all of which are issued and outstanding. |
| (ii) | C Class Shares. Immediately prior to the Closing, a total of 147,685 C Class shares of the Company (the “C Class Shares”), all of which are issued and outstanding. |
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(b) Options. Except for 147,685 C Class shares issued to ZII EVER GREEN PTY, which shall be granted to certain employees from time to time, there are no options, warrants, conversion privileges, convertible bonds, right of pre-emption, right of first or last refusal, or other third party agreements or rights of any kind over any Group Company which entitle any person to call for the issue or transfer of securities in any Group Company. Apart from the exceptions noted in this Section 4.02(b), no shares (including the Transferred Shares) of the Company’s outstanding share capital, or shares issuable upon exercise, conversion or exchange of any outstanding options or other securities issuable by the Company, are subject to any preemptive rights, rights of first refusal or other rights of any kind to purchase such shares (whether in favor of the Company or any other person).
(c) Outstanding Security Holders. A complete and current list of all shareholders, option holders and other security holders (including convertible note holders) of the Company indicating the type and number of shares, options or other securities held by each such shareholder, option holder or other security holder is set forth in Schedule II immediately prior to and after the Closing.
(d) No share plan, share purchase, share option or other agreement or understanding between the Company and any holder of any securities or rights exercisable or convertible for securities provides for acceleration or other changes in the vesting provisions or other terms of such agreement or understanding as the result of the occurrence of any event.
SECTION4.03 Subsidiaries; Group Structure.
(e) Except for the Group Companies the shareholding structure of which are as listed in Section 4.03 of the Disclosure Schedule, the Company does not presently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, association, or other entity.
(f) Each of the Group Company shall possess all requisite approvals, permits and licenses for the conduct of the business as currently conducted and proposed to be conducted and for the ownership and operation of its assets and property.
SECTION4.04 Due Authorization.
All corporate action on the part of the Transferors and Group Companies and, as applicable, their respective officers, directors and shareholders necessary for (i) the authorization, execution and delivery of, and the performance of the obligations of the Transferors and Group Companies under this Agreement and other Transaction Documents and the various agreements, instruments or documents attached to or entered into in connection with Transaction Documents and (ii) the authorization, transfer, reservation for transfer and delivery of all of the Transferred Shares being sold under this Agreement. Each of the Transaction Documents is or will, upon its execution be a valid and binding obligation of each Transferor and each Group Company enforceable in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting creditors’ rights generally and to general equitable principles.
SECTION4.05 Ownership of the Transferred Shares; Restrictions.
(g) Each Transferor is the legal and beneficial owner of its Transferred Shares and has the full right, power and authority to sell and transfer its Transferred Shares. The Transferred Shares which are to be sold hereunder are owned free and clear of any Encumbrance. The Transferred Shares are subject to no restrictions with respect to transferability, except compliance with applicable laws and any applicable provisions under the Transaction Documents.
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(h) All current shares of the Company are duly and validly issued, fully paid and nonassessable, and all shares, options, warrants and other securities of the Company and each other Group Company have been issued in full compliance with the requirements of all applicable securities laws and regulations, or in compliance with applicable exemptions therefrom, and all other provisions of applicable securities laws and regulations, including, without limitation, anti-fraud provisions.
SECTION4.06 Liabilities.
Except as reflected in the Financial Statements (as defined in Section 4.14 below), no Group Company has any indebtedness for borrowed money that it has directly or indirectly created, incurred, assumed, or guaranteed, or with respect to which the Group Company has otherwise become directly or indirectly liable.
SECTION4.07 Title to Properties and Assets.
Each Group Company has good and marketable title to its properties and assets held in each case subject to no mortgage, pledge, lien, encumbrance, security interest or charge of any kind. With respect to the property and assets it leases, each Group Company is in compliance with such leases and such Group Company holds valid leasehold interests in such assets free of any liens, encumbrances, security interests or claims of any party other than the lessors of such property and assets.
SECTION4.08 Status of Proprietary Assets.
Each Group Company (i) has independently developed and owns free and clear of all claims, security interests, liens or other encumbrances, or (ii) has a valid right or license to use, all Proprietary Assets (as defined below), including without limitation all Registered Intellectual Property (as defined below), necessary and appropriate for the Business and without any conflict with or infringement of the rights of others. For purpose of this Agreement, (i) “Proprietary Assets” shall mean all patents, patent applications, trademarks, service marks, trade names, domain names, copyrights, copyright registrations and applications and all other rights corresponding thereto, inventions, databases and all rights therein, all computer software including all source code, object code, firmware, development tools, files, records and data, including all media on which any of the foregoing is stored, formulas, designs, business methods, trade secrets, confidential and proprietary information, proprietary rights, know-how and processes, and all documentation related to any of the foregoing; and (ii) “Registered Intellectual Property” means all Proprietary Assets of any Group Company, wherever located, that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any government authority.
Section 4.08 of the Disclosure Schedule contains a complete list of Proprietary Assets, including all Registered Intellectual Property or any intellectual property in process of registration, of each Group Company. There are no outstanding options, licenses, agreements or rights of any kind granted by any Group Company or any other party relating to any Group Company’s Proprietary Assets, nor is any Group Company bound by or a party to any options, licenses, agreements or rights of any kind with respect to the Proprietary Assets of any other person or entity. No Group Company has received any written communications alleging that it has violated or, by conducting its business as proposed, would violate any Proprietary Assets of any other person or entity, nor, is there any reasonable basis therefor. None of the current or former officers, employees or consultants of any Group Company (at the time of their employment or engagement by a Group Company) has been or is obligated under any agreement (including licenses, covenants or commitments of any nature) or other arrangement or undertaking of any kind, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his, her or its best efforts to promote the interests of such Group Company or that would conflict with the business of such Group Company as proposed to be conducted or that would prevent such officers, employees or consultants from assigning to such Group Company inventions conceived or reduced to practice in connection with services rendered to such Group Company. Neither the execution nor delivery of the Transaction Documents, nor the carrying on of the business of any Group Company by its directors, officers or employees, nor the conduct of the business of any Group Company as proposed, will conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contract, covenant or instrument under which any of such directors, officers or employees is now obligated. It will not be necessary to utilize any inventions of any of the Group Companies’ employees (or people the Group Companies currently intend to hire) made prior to or outside the scope of their employment by the relevant Group Company.
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No government funding, facilities of any educational institution or research center, or funding from third parties has been used in the development of any Proprietary Assets of any Group Company. There shall have been no dispute on the confidentiality, non-competition or Proprietary Assets between each of the employee of Group Companies and his or her former employers.
SECTION4.09 Material Contracts and Obligations.
All agreements, contracts, leases, licenses, mortgages, indentures, instruments, commitments (oral or written), indebtedness, liabilities and other obligations to which each Group Company is a party or by which it or its assets is bound (each, a “Group Company Contract” and collectively, the “Group Company Contracts”) that (i) are material to the conduct and operations of its business and properties, (ii) involve any of the officers, consultants, directors, employees or shareholders of the Group Company; or (iii) obligate such Group Company to share, license or develop any product or technology are listed in Section 4.09 of the Disclosure Schedule and have been made available for inspection by the Transferee and their counsel. All of the Group Company Contracts are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company and all the other parties thereto.
SECTION4.10 Litigation.
There is no action, suit, proceeding, claim, arbitration or investigation (“Action”) pending or currently threatened against any of the Group Companies, any Group Company’s activities, properties or assets or against any officer, director or employee of each Group Company in connection with such officer’s, director’s or employee’s relationship with, or actions taken on behalf of any Group Company, or otherwise. There is no factual or legal basis for any such Action that is likely to result, individually or in the aggregate, in any Material Adverse Effect. By way of example, but not by way of limitation, there are no Actions pending against any of the Group Companies or threatened against any of the Group Companies, relating to the use by any employee of any Group Company of any information, technology or techniques allegedly proprietary to any of their former employers, clients or other parties. None of the Group Companies is a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality and there is no Action by any Group Company currently pending or which it intends to initiate.
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SECTION4.11 Compliance with Laws; Consents and Permits.
None of the Transferors nor any shareholders of the Company is or has been in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its equity interests in the Group Company. All consents, licenses, permits, approvals, orders, authorizations or registrations, qualifications, designations, declarations or filings by or with any governmental authority (the “Permits”) and any third party (collectively with the Permits, the “Consents”) which are required to be obtained or made by each Transferor and each Group Company in connection with the consummation of the transactions contemplated hereunder shall have been obtained or made prior to and shall be fully effective as of the Closing (if it occurs). Each Group Company has all franchises, permits, licenses and any similar authority necessary for the conduct of its business as currently conducted and as proposed to be conducted, the absence of which would be reasonably likely to have a Material Adverse Effect. None of the Group Companies is in default under any of such franchises, permits, licenses or other similar authority.
SECTION4.12 Compliance with Other Instruments and Agreements.
None of the Group Companies is or has been in, nor shall the conduct of its business as currently or proposed to be conducted result in, violation, breach or default of any term of its constitutional documents of the respective Group Company, or in any material respect of any term or provision of Group Company Contract or of any provision of any judgment, decree, order, statute, rule or regulation applicable to or binding upon the Group Company. None of the activities, agreements, commitments or rights of any Group Company is ultra vires or invalid, or unauthorized. The execution, delivery and performance of and compliance with the Transaction Documents and the consummation of the transactions contemplated hereby and thereby, will not result in any such violation, breach or default, or be in conflict with or constitute, with or without the passage of time or the giving of notice or both, either a default under any Group Company’s constitutional documents or any Group Company Contract, or a violation of any statutes, laws, regulations or orders, or an event which results in the creation of any lien, charge or encumbrance upon any asset of any Group Company.
SECTION4.13 Financial Advisor Fees.
There exists no agreement or understanding between any Group Company and any investment bank or other financial advisor under which such Group Company may owe any brokerage, placement or other fees relating to the offer or sale of the Transferred Shares.
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SECTION4.14 Financial Statements.
The management accounts of the Group Companies for the respective periods from their inception to December 31, 2024 (the “Financial Statements Date”, and the management accounts and any notes thereto are hereinafter referred to as the “Financial Statements”) are (a) in accordance with the books and records of the applicable Group Company, and (b) true, correct and complete and present fairly the financial condition of such Group Company at the date or dates therein indicated and the results of operations for the period or periods therein specified. Specifically, but not by way of limitation, the respective balance sheets of the Financial Statements disclose all of the Group Companies’ respective debts, liabilities and obligations of any nature, whether due or to become due, as of their respective dates (including, without limitation, absolute liabilities, accrued liabilities, and contingent liabilities) to the extent such debts, liabilities and obligations are required to be disclosed in accordance with generally accepted accounting principles as required in the jurisdiction where it is incorporated. The Group Companies have good and marketable title to all assets set forth on the balance sheets of the respective Financial Statements, except for such assets as have been spent, sold or transferred in the ordinary course of business since their respective dates. None of the Group Companies is a guarantor or indemnitor of any indebtedness of any other person or entity. Each Group Company maintains and will continue to maintain a standard system of accounting established and administered in accordance with generally accepted accounting principles as required in the jurisdiction where it is incorporated.
SECTION4.15 Activities since Financial Statements Date.
Since the Financial Statements Date, with respect to each Group Company, there has not been:
(i) any change in the assets, liabilities, financial condition or operating results of the Group Company from that reflected in the Financial Statements, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse;
(j) any material change in the contingent obligations of the Group Company by way of guarantee, endorsement, indemnity, warranty or otherwise;
(k) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the assets, properties, financial condition, operating results, prospects or business of the Group Company (as presently conducted and as presently proposed to be conducted);
(l) any waiver by the Group Company of a valuable right or of a material debt;
(m) any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Group Company, except such satisfaction, discharge or payment made in the ordinary course of business that would not have a Material Adverse Effect;
(n) any material change or amendment to a material contract or arrangement by which the Group Company or any of its assets or properties is bound or subject, except for changes or amendments which are expressly provided for or disclosed in this Agreement;
(o) any material change in any compensation arrangement or agreement with any present or prospective employee, contractor or director;
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(p) any sale, assignment or transfer of any Proprietary Assets or other material intangible assets of the Group Company;
(q) any resignation or termination of any key officer or employee of the Group Company;
(r) any mortgage, pledge, transfer of a security interest in, or lien created by the Group Company, with respect to any of the Group Company’s properties or assets, except liens for taxes not yet due or payable;
(s) any debt, obligation, or liability incurred, assumed or guaranteed by the Group Company other than in the ordinary course of business;
(t) any declaration, setting aside or payment or other distribution in respect of any of the Group Company’s share capital, or any direct or indirect redemption, purchase or other acquisition of any of such share capital by the Group Company;
(u) any failure to conduct business in the ordinary course, consistent with the Group Company’s past practices;
(v) any transactions of any kind with any of its officers, directors or employees, or any members of their immediate families, or any entity controlled by any of such individuals;
(w) any other event or condition of any character which could reasonably be expected to have a Material Adverse Effect; or
(x) any agreement or commitment by the Group Company or any Transferor to do any of the things described in this Section 4.15.
SECTION4.16 Tax Matters.
The provisions for taxes in the respective Financial Statements are sufficient for the payment of all accrued and unpaid applicable taxes of the covered Group Company, whether or not assessed or disputed as of the date of each such balance sheet. There have been no examinations or audits of any tax returns or reports by any applicable governmental agency. Each Group Company has duly filed all tax returns required to have been filed by it and paid all taxes shown to be due on such returns. Each Group Company is not subject to any waivers of applicable statutes of limitations with respect to taxes for any year. Since the Financial Statements Date, none of the Group Companies has incurred any taxes, assessments or governmental charges other than in the ordinary course of business and each Group Company has made adequate provisions on its books of account for all taxes, assessments and governmental charges with respect to its business, properties and operations for such period.
SECTION4.17 Interested Party Transactions.
No Transferor, officer or director of a Group Company or any affiliate or associate of any such person has any agreement (whether oral or written), understanding, proposed transaction with, or is indebted to, any Group Company, nor is any Group Company indebted (or committed to make loans or extend or guarantee credit) to any of such persons (other than for accrued salaries, reimbursable expenses or other standard employee benefits). No officer or director of a Transferor has any direct or indirect ownership interest in, or any agreement or other arrangement or undertaking, whether oral or written, with, any firm or corporation with which a Group Company is affiliated or with which a Group Company has a business relationship, or any firm or corporation that competes with a Group Company. No affiliate or associate of any officer or director of a Transferor is directly or indirectly interested in any contract with a Group Company. No officer or director of a Group Company or any affiliate or associate of any such person has had, either directly or indirectly, an interest in: (a) any person or entity which purchases from or sells, licenses or furnishes to a Group Company any goods, property, intellectual or other property rights or services; or (b) any contract or agreement to which a Group Company is a party or by which it may be bound or affected. There is no agreement between any shareholder of the Company with respect to the ownership or control of any Group Company.
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SECTION4.18 Environmental and Safety Laws.
None of the Group Companies is in violation of any applicable statute, law, or regulation relating to the environment or occupational health and safety and no material expenditures are or will be required in order to comply with any such existing statute, law or regulation.
SECTION4.19 Employee Matters.
The Group Companies have complied in all material aspects with all applicable employment and labor laws. The Group Companies are not aware that any officer or key employee intends to terminate their employment with any Group Company, nor does any Group Company have a present intention to terminate the employment of any officer or key employee. Except as otherwise disclosed to the Transferee in Section 4.19 of the Disclosure Schedule, the Group Companies are not the party to or bound by any currently effective incentive plan, profit sharing plan, retirement agreement or other employee compensation agreement.
SECTION4.20 Minute Books.
The minute books of each Group Company with regard to the material matters or material transactions since its time of formation have been made available to the Transferee and each such minute books contains a complete summary of all meetings and actions taken by directors and shareholders or owners of such Group Company, and reflects all transactions referred to in such minutes accurately in all material respects.
SECTION4.21 Obligations of Management.
Each of the key employees is currently devoting his or her full working time to the conduct of the business of a Group Company or the Group Companies. No Transferor is aware that any employee is planning to work less than full time at a Group Company in the future. None of such employees is currently working for a competitive enterprise, whether or not such person is or will be compensated by such enterprise.
SECTION4.22 Disclosure.
Each Transferor and the Group Companies has fully provided the Transferee with all the information that the Transferee has requested for deciding whether to purchase the Transferred Shares and all information that each Transferor and the Group Companies reasonably believes is necessary or relevant to enable the Transferee to make an informed investment decision. No representation or warranty by any Transferor or the Group Companies in this Agreement and no information or materials provided by any Transferor or the Group Companies to the Transferee in connection with the negotiation or execution of this Agreement or any agreement contemplated hereby contains or will contain any untrue statement of a material fact, or omits or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading. No financial forecasts or forward-looking statements in any business plans or other materials provided by any Transferor or the Group Companies to the Transferee has been prepared based on unreasonable assumptions.
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SECTION4.23 Insurance.
Each Group Company has in full force and effect automobile insurance policies and employee casualty insurance policies, with extended coverage, sufficient in amount (subject to reasonable deductibles) to allow it to receive adequate compensation for any of the losses that it may incur within the two categories cited above.
SECTION4.24 Trustee representations and warranties.
Each Transferor (except for Younghyun An) warrants in respect of the trust set out opposite the Transferor’s name in Schedule 1 (“Relevant Trust”):
(a) it is the only trustee of the Relevant Trust and no action has been taken or is proposed in writing to remove it as trustee of the Relevant Trust;
(b) it has the power under the terms of the Relevant Trust to enter into and comply with its obligations under this Agreement including the power to sell the Transferred Shares set out opposite its name in Schedule 1;
(c) it has carefully considered the purpose of this Agreement and considers that entry into this Agreement is for the benefit of the beneficiaries of the Relevant Trust, whose consents (if necessary) have been obtained and the terms of this Agreement are fair and reasonable;
(d) it has a right to be fully indemnified out of each of the Relevant Trust’s assets in respect of obligations incurred by it under this Agreement and the assets of the Relevant Trust are sufficient to satisfy that right of indemnity and all other obligations in respect of which the trustee has a right to be indemnified out of the Relevant Trust’s assets;
(e) it is not, and has never been, in default under the terms of the Relevant Trust;
(f) no action has been taken or proposed in writing to terminate the Relevant Trust; and
(g) it and its directors and other officers have complied with their obligations in connection with the Relevant Trust.
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ARTICLE V
COVENANTS OF THE TRANSFERORS AND THE COMPANY
Each of the Transferors and the Company covenants to the Transferee as follows:
SECTION5.01 Use of Transferee’s Name or Logo.
Without the prior written consent of the Transferee, and whether or not the Transferee is then the shareholders of the Company, none of the Transferors and Group Companies, their shareholders (excluding the Transferee), shall use, publish or reproduce the names of the Transferee or any similar names, trademarks or logos in any of their marketing, advertising or promotion materials or otherwise for any marketing, advertising or promotional purposes, except for the fact of the equity investments and shareholding in the Group Companies by the Transferee (and in any such case shall not disclose the aggregate or individual investment amounts, pricing or ownership percentage, or any of the term of the Transaction Documents).
SECTION5.02 Equity Compensation.
The Company shall not directly or indirectly issue shares in the Company, share options or other forms of equity of the Company to employees, directors or consultants except in accordance with the employee equity compensation plans (the “ESOP”) duly approved in accordance with the Transaction Documents, and the issue or grant of which (following Completion) shall be approved by the Transferee at the shareholders meetings or the director (if any) appointed by the Transferee at the Board. Unless the shareholders meeting or the Board of the Company resolves otherwise (including the affirmative vote by the Transferee or the director appointed by the Transferee), the employees’ restricted shares and stock options to be granted under any equity incentive plan shall vest pursuant to the following schedule: twenty-five percent (25%) of the total shares and options will vest on the first anniversary of the date that such employee’s employment or services with the Company (or its subsidiary or affiliates)/such issuance, with the remaining seventy-five percent (75%) to vest yearly in equal installments over the next three years. There shall be no accelerated vesting of any shares in the Company except if with the prior approval of the Transferee at the shareholders meetings or the director (if any) appointed by the Transferee at the Board.
SECTION5.03 Employment Agreement and Confidentiality, Non-Competition and Intellectual Property Rights Agreement.
As soon as practical after the Closing, the Group Companies shall cause all of their respective current employees to enter into employment agreements and confidentiality, non-competition and intellectual property rights agreements in form and substance satisfactory to the Transferee. The Group Companies shall further cause all of their respective future employees to enter into its standard form employment agreement and confidentiality, non-competition and intellectual property rights agreement in form and substance satisfactory to the Transferee.
SECTION5.04 Accrual Accounting.
As soon as practicable after Closing, the Group Companies shall establish and maintain the accounting policies and financial system in full compliance with all applicable laws and regulations and to the Transferee’s satisfaction.
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SECTION5.05 Tax Indemnity.
Each Transferor hereby undertakes to pay to the Transferee an amount equal to the amount of any diminution in the value of the Transferred Shares, and to indemnify the Transferee against any and all losses, liabilities, damages, suits, obligations, judgments or settlements or any kind (including, without limitation, all reasonable legal costs, costs of recovery and other expenses incurred thereby), in each case resulting from any claim of taxation (including those resulting from cancellation or reclamation of tax benefits of any kind relating to each of the Transferors or the Group Companies) arising from an event that occurred or is deemed to have occurred prior to the Closing.
SECTION5.06 Regulatory Compliance.
Each Group Company shall comply with all applicable laws and regulations in connection with the daily operations. Each Group Company shall use its best efforts to cause all shareholders of each Group Company, and any successor entity or controlled affiliate of any Group Company to, timely complete all required registrations and other procedures with applicable governmental authorities as and when required by applicable laws and regulations. The Group Companies shall ensure that, each entity described above and its respective shareholders are in compliance with such requirements.
SECTION5.07 Additional Covenants.
Except as required by this Agreement, no resolution of the directors, owners, members, partners or shareholders of any of the Group Companies shall be passed, nor shall any contract or commitment be entered into, in each case, prior to the Closing without the prior written consent of the Transferee, except that the Group Companies may carry on its respective business in the same manner as heretofore and may pass resolutions or enter into contracts for so long as they are effected in the ordinary course of business.
If at any time before the Closing, any of the Transferors or the Group Companies comes to know of any material fact or event which:
(a) is in any way materially inconsistent with any of the representations and warranties given by each Transferor or the Group Companies, and/or
(b) suggests that any material fact warranted may not be as warranted or may be materially misleading, and/or
(c) might affect the willingness of a reasonable Transferee in making a prudent decision to purchase the Transferred Shares or the amount of consideration which the Transferee would be prepared to pay for the Transferred Shares,
such Transferor or the Group Company shall give immediate written notice thereof to the Transferee in which event the Transferee may within five (5) business days of receiving such notice terminate this Agreement by written notice without any penalty whatsoever and without prejudice to any rights that the Transferee may have under this Agreement or applicable law.
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SECTION5.08 Exclusivity.
From the date hereof until the date that is ten (10) business days after the satisfaction or waiver of each condition to the Closing set forth in Article VI and VII (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), the Transferors agree not to (i) discuss the transfer of any securities of the Company with any third party, or (ii) provide (and procure that the Company does not provide) any information with respect to the Transferred Shares to a third party in connection with a potential share sale, asset sale or other transaction which competes with the transactions contemplated in this Agreement, or (iii) close any share transfer transaction of any securities of the Company with any third party. Notwithstanding the above, this Section 5.08 shall terminate and be of no further force and effect immediately following the Closing Date.
SECTION5.09 Employee Matters.
The Group Companies shall comply with all applicable labor laws and regulations in all material respects, including without limitation, laws and regulations pertaining to welfare funds, social benefits, medical benefits, insurance, retirement benefits, and pensions.
SECTION5.10 Tax Matters.
Each party shall comply with all applicable tax laws and regulations and be responsible for its own taxes in connection with the transactions contemplated by this Agreement, if any.
The Group Companies shall comply with all applicable tax laws and regulations in all material respects, including without limitation, laws and regulations pertaining to income tax, value added tax and business tax.
SECTION5.11 D&O Insurance.
Upon the request of the Transferee, the Company shall obtain, at the cost no more than the average market price of such insurance, for the director nominated by the Transferee insurance against liability for negligence, default, breach of duty or breach of trust incurred in the course of discharging his or her duties as director or officer of the Company, including without limitation, director and officer liability insurance in an agreed insured amount.
SECTION5.12 Permit and License.
As soon as practicable after the Closing, the Group Companies shall obtain all Permits necessary in full compliance with applicable laws for the conduct of their business as currently conducted and as proposed to be conducted.
SECTION5.13 Establishment of WFOE and Acquisition of Domestic Assets and Employees
As soon as practicable and in any event no later than the period agreed by the Transferee after the Closing, the Company shall establish a wholly-owned subsidiary (the “WFOE”) in Beijing, PRC. And the WFOE shall, and the Group Companies shall cause the WFOE to, acquire all the assets (including the intellectual property) and employees of the Ziicloud Tech Limited (厦门云济之易科技有限公司), a limited liability company established in Xiamen, PRC and Beijing Yidian Zhiyi Technology Co., Ltd. (北京一点之易科技有限公司), a limited liability company established in Beijing, PRC as soon as practicable and in any event no later than the period agreed by the Transferee after the Closing.
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SECTION5.14 Acquisition of Singapore Company
As soon as practicable and in any event no later than the period agreed by the Transferee after the Closing, the Group Companies shall cause certain shareholders of the Singapore Company to transfer all their shares of the Singapore Company held by them to the Company at nil consideration or other legally allowed lowest price (the “Acquisition of the Singapore Company”). After the Acquisition of the Singapore Company, the Company shall hold no less than 60% share percentage of the Singapore Company.
SECTION5.15 Each Transferor (except for Younghyun An) acknowledges that it enters into this document in the capacity as the trustee for the trust set out opposite the Transferor’s name in Schedule 1. Until all obligations under this document are discharged, the Transferors may not, without the consent of the Transferee, do anything which:
| (i) | effects or facilitates the retirement, removal or replacement of the Transferor as trustee of the relevant trust; |
| (ii) | could restrict the Transferor’s right of indemnity from the relevant trust assets in respect of obligations incurred by the trustee under this Agreement; |
| (iii) | could restrict or impair the ability of the Transferor to comply with its obligations under this Agreement; |
| (iv) | effects or facilitates the termination of the relevant trust; |
| (v) | effects or facilitates the variation of the terms of the relevant trust; |
| (vi) | effects or facilitates the resettlement of the relevant trust funds; or |
| (vii) | could result in the relevant trust assets being mixed with other property. |
SECTION5.16 Key Employment Agreements.
As soon as practicable and in any event no later than the period agreed by the Transferee after the Closing, the Group Companies shall cause William ‘Wei’ Wei (as Chief Executive Officer) and Jiesi ‘Jess’ Zhang (as Chief Technology Officer) to enter into employment agreements with WFOE on terms reasonably satisfactory to the Transferor.
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ARTICLE VI
CONDITIONS OF TRANSFEREE’S OBLIGATIONS AT CLOSING
The obligation of the Transferee to purchase the Transferred Shares at the Closing is subject to the fulfillment, to the satisfaction of the Transferee (or waiver thereof by the Transferee in writing) on or prior to the Closing Date, of the following conditions:
SECTION6.01 Representations and Warranties True and Correct.
The representations and warranties made by the Transferors and the Group Companies in Article IV hereof shall be true and correct and complete when made, and shall be true and correct and complete as of the Closing Date with the same force and effect as if they had been made on and as of such date, subject to changes contemplated by this Agreement.
SECTION6.02 Performance of Obligations.
Each Transferor and the Group Company shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing.
SECTION6.03 Proceedings and Documents.
All corporate and other proceedings in connection with the transactions contemplated hereby and all documents and instruments incident to such transactions shall be satisfactory in substance and form to the Transferee, and the Transferee shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request.
SECTION6.04 Approvals, Consents and Waivers.
Each of the Transferors and the Group Company shall have obtained any and all approvals, consents and waivers necessary for consummation of the transactions contemplated by this Agreement, including, but not limited to, (i) all permits, authorizations, approvals, consents or permits of any governmental authority or regulatory body, and (ii) the waiver by the existing shareholders of the Company of any anti-dilution rights, rights of first refusal, preemptive rights and all similar rights in connection with the transfer of the Transferred Shares at the Closing (including any such rights under clause 13 of the Shareholders Agreement), and (iii) all necessary board and shareholder approvals of the Transferors and each Group Company necessary to facilitate this Agreement and the transactions contemplated hereunder.
SECTION6.05 Compliance Certificate.
At the Closing, the Transferors and the Group Companies shall deliver to the Transferee a compliance certificate, dated the date of the Closing, signed by the Transferors and the Group Companies, certifying that the conditions specified in Article VI have been fulfilled and stating that there shall have been no material adverse change in the business, affairs, prospects, operations, properties, assets or conditions of the Group Companies since the date of this Agreement (in the form attached hereto as Exhibit E).
SECTION6.06 Execution of Transaction Documents.
Each of the parties to the Transaction Documents shall have executed and delivered such Transaction Documents to the Transferee. All corporate and other proceedings in connection with the transactions to be completed at the Closing and all documents incident thereto, including without limitation written resolutions being duly and validly adopted by the board of directors and the shareholders of the Group Companies, evidencing the authorization or acknowledgement (as applicable) by the board of directors and the shareholders of any Group Company of the execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, and the written approval and waiver of veto rights, rights of first refusal and any other rights from all of the then current shareholders of any Group Company.
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SECTION6.07 Due Diligence.
The Transferee shall have completed their legal, financial and business due diligence investigation of the Group Companies to their satisfaction.
SECTION6.08 Approval by Internal Committee.
The Transferee shall have received approvals, if required, by its internal committee for entering into the transactions and documents contemplated hereunder.
SECTION6.09 No Material Adverse Effect.
There shall have been no Material Adverse Effect since the date of this Agreement.
SECTION6.10 Reclassification of the Class of Shares Held by ZII EVER GREEN PTY LTD
The class of 147,685 shares of the Company held by ZII EVER GREEN PTY LTD shall be reclassified from A Class to C Class, which shall have been duly resolved by the board or / and shareholders of the Company, and filed to and maintained by ASIC or other appropriate institutions, reflecting the such 147,685 shares of the Company held by ZII EVER GREEN PTY LTD are C Class Shares.
ARTICLE VII
MISCELLANEOUS
SECTION7.01 Indemnity.
(a) General Indemnity. Each Transferor and the Group Company shall, jointly and severally, indemnify the Transferee and its Affiliates, and their respective directors, officers, agents and assigns (each an “Indemnified Party”) against any reduction in value of the Transferred Shares, any increase in their liabilities, any dilution of the Indemnified Party’s interests in the Group Companies or any diminution in the value of the Indemnified Party’s interests in the Group Companies (the “Indemnifiable Losses”) as a result of (i) any breach or violation of any representation or warranty in any Transaction Document made by any the Transferors and the Group Company; or (ii) any breach by any Transferor or the Group Company of any covenant or agreement contained in any Transaction Document.
SECTION7.02 Governing Law.
This Agreement shall be governed by and construed exclusively in accordance with the laws of Victoria, Australia, without regard to principles of conflicts of law thereunder.
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SECTION7.03 Survival.
The representations, warranties, covenants and agreements made herein shall survive any investigation made by any party hereto and the closing of the transactions contemplated hereby.
SECTION7.04 Successors and Assigns.
Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto whose rights or obligations hereunder are affected by such amendments. This Agreement and the rights and obligations therein may not be assigned by the Transferors without the written consent of the Transferee.
SECTION7.05 Entire Agreement.
This Agreement and other Transaction Documents, and the schedules and exhibits hereto and thereto, which are hereby expressly incorporated herein by this reference constitute the entire understanding and agreement between the parties with regard to the subjects hereof and thereof; provided, however, that nothing in this Agreement or related agreements shall be deemed to terminate or supersede the provisions of any confidentiality and nondisclosure agreements executed by the parties hereto prior to the date hereof, which agreements shall continue in full force and effect until terminated in accordance with their respective terms.
SECTION7.06 Notices.
Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given (a) when hand delivered to the other party, upon delivery; (b) when sent by facsimile at the number set forth in EXHIBIT F hereto, upon receipt of confirmation of error-free transmission; (c) seven (7) business days after deposit in the mail as air mail or certified mail, receipt requested, postage prepaid and addressed to the other party as set forth in EXHIBIT F; or (d) three (3) business days after deposit with an overnight delivery service, postage prepaid, addressed to the parties as set forth in EXHIBIT F with next business day delivery guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider.
Each person making a communication hereunder by facsimile shall promptly confirm by telephone to the person to whom such communication was addressed each communication made by it by facsimile pursuant hereto but the absence of such confirmation shall not affect the validity of any such communication. A party may change or supplement the addresses given above, or designate additional addresses, for purposes of this section by giving, the other parties written notice of the new address in the manner set forth above.
SECTION7.07 Amendments.
Any term of this Agreement may be amended only with the written consent of the Transferee.
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SECTION7.08 Delays or Omissions.
No delay or omission to exercise any right, power or remedy accruing to the Transferors and the Transferee, upon any breach or default of any party hereto under this Agreement, shall impair any such right, power or remedy of such Transferor or Transferee, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach of default thereafter occurring; nor shall any waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Transferor or Transferee of any breach of default under this Agreement or any waiver on the part of any Transferor or Transferee of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to the Transferors and the Transferee shall be cumulative and not alternative.
SECTION7.09 Finder’s Fees.
Except as disclosed in the Disclosure Schedule, each party represents and warrants to the other party hereto that it has retained no finder or broker in connection with the transactions contemplated by this Agreement and hereby agrees to indemnify and to hold harmless the other party hereto from and against any liability for any commission or compensation in the nature of a finder’s fee of any broker or other person or firm (and the costs and expenses of defending against such liability or asserted liability) for which the indemnifying party or any of its employees or representatives are responsible.
SECTION7.10 Interpretation; Titles and Subtitles.
This Agreement shall be construed according to its fair language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless otherwise expressly provided herein, all references to Sections and Exhibits herein are to Sections and Exhibits of this Agreement. As used in this Agreement, the words “include” and “including”, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”.
SECTION7.11 Counterparts.
This Agreement may be executed (including facsimile signature) in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
SECTION7.12 Severability.
If any provision of this Agreement is found to be invalid or unenforceable, then such provision shall be construed, to the extent feasible, so as to render the provision enforceable and to provide for the consummation of the transactions contemplated hereby on substantially the same terms as originally set forth herein, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect unless the severed provision is essential to the rights or benefits intended by the parties. In such event, the parties shall use best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly effects the parties’ intent in entering into this Agreement.
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SECTION7.13 Confidentiality and Non-Disclosure.
Each party agrees to keep the terms of this Agreement strictly confidential and shall not disclose the same or use the same or the name of the other party in any publicity, advertisement or other disclosure with regard to this Agreement without the prior written consent of the other party (as the case may be) except (a) where requested or required by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body; (b) where such information is required to be disclosed by the parties to their respective advisers in connection with this Agreement and the transactions contemplated hereunder, so long as such advisers are under a duty or obligation of confidentiality that is no less strict than this Section 7.13 to the respective parties; (c) where required by the rules of any stock exchange on which the shares or other securities of such party (or its affiliates) are listed or be listed; or (d) required by any other applicable laws.
In the event that a party is required to disclose any confidential information pursuant to any of the foregoing exceptions, such party shall, to the extent legally permissible, promptly provide the other parties with written notice of such request or requirement, and shall use reasonable efforts to seek confidential treatment, protective order or other appropriate remedy. In any event, such party shall only disclose that portion of the information that is legally required to be disclosed, and shall use reasonable efforts to ensure that confidential treatment is accorded to such disclosed information.
SECTION7.14 Further Assurances.
Each party shall from time to time and at all times hereafter make, do, execute, or cause or procure to be made, done and executed such further acts, deeds, conveyances, consents and assurances without further consideration, which may reasonably be required to effect the transactions contemplated by this Agreement.
SECTION7.15 Dispute Resolution.
(a) Negotiation Between Parties. The parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of all parties within thirty (30) days, Section 7.17(b) shall apply.
(b) Arbitration. In the event the parties are unable to settle a dispute between them regarding this Agreement in accordance with subsection (a) above, such dispute shall be referred to and finally settled by arbitration at Hong Kong International Arbitration Centre (the “HKIAC”). The arbitration shall be conducted in accordance with the HKIAC’s arbitration rules as in effect at the time of submission to arbitration. The award of the arbitration tribunal shall be final and binding upon the parties, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.
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SECTION7.16 Expenses.
Each Party shall be responsible for all of its own costs and expenses incurred by it or on its behalf in connection with the negotiation, execution, delivery and performance of this Agreement and other Transaction Documents and the transactions contemplated hereby and thereby.
SECTION7.17 Termination.
This Agreement may be terminated by (i) mutual consent of the parties in writing; or (ii) by the Transferee if the Closing has not occurred within three (3) months or other longer period solely decided by the Transferee after the Execution Date.
If this Agreement is terminated as provided in this Section 7.17, this Agreement shall be of no further force or effect except that the termination will not relieve any party from any liability for any breach of this Agreement prior to such termination. The provisions of Section 7.01, Section 7.02, Section 7.13, Section 7.15 and this Section 7.17 shall survive the termination of this Agreement. Notwithstanding the foregoing, after the termination of this Agreement, the applicable Transferor shall return the Transfer Consideration issued by the Transferee in an appropriate pattern and in good faith, and try to restore the status at the time before the Closing. For the avoidance of doubt, the termination of this Agreement between the Transferee and any Transferor shall not affect the validity and effectiveness of this Agreement among the Transferee and any other Transferor, and provided further that any Transferor’s failure to complete the Closing in accordance with this Agreement shall not affect the validity and effectiveness of the Closing accomplished by and among the Transferee and any other Transferor.
EXECUTED as a deed.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused their respective duly authorized representatives to execute this Agreement as of the date and year first above written.
THE TRANSFERORS:
|
SIGNED, SEALED AND DELIVERED by [*]:
Signature of director
Name of director (block letters) |
Signature of director/company secretary
Name of director/company secretary (block letters)
|
IN WITNESS WHEREOF, the parties hereto have caused their respective duly authorized representatives to execute this Agreement as of the date and year first above written.
THE TRANSFEREE:
|
SIGNED, SEALED AND DELIVERED by Pintec Technology Holdings Limited in the presence of:
Signature of witness
Name of witness (block letters)
Strike out the below if not relevant:
By signing this document, the witness states that they witnessed the signature of the signatory over audio visual link in accordance with s 12 of the Electronic Transactions (Victoria) Act 2000 (Vic). |
Signature of authorised signatory
Name of authorised signatory (block letters) |
Exhibit 99.3
Final Version
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this “Agreement”) is dated as of _________, 2025, between Pintec Technology Holdings Limited, a Cayman Islands exempted company (the “Company”), and the purchaser identified on the signature page hereto (including its successors and assigns, the “Purchaser”).
WHEREAS, the Company intends to enter into a Share Transfer Agreement (the “Share Transfer Agreement”) with the Purchaser and other parties in the form, or substantially in the same form, of Exhibit I, under which the Purchaser agrees to transfer to the Company, and the Company agrees to purchase from the Purchaser, certain number of ordinary shares (the “Ziitech Shares”) of ZIITECH PTY LTD (the “Ziitech”), a proprietary company incorporated in Victoria, Australia, held by the Purchaser.
WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company desires to sell and issue to the Purchaser, and the Purchaser desires to purchase from the Company, certain number of class A ordinary shares of the Company as the consideration of Ziitech Shares transferred by the Purchaser to the Company, as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Action” means an action, suit, inquiry, notice of violation, proceeding or investigation before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day other than Saturday, Sunday or any day on which banking institutions in the PRC, Hong Kong, Australia or the United States of America are authorized or required by law or other governmental action to remain closed.
“Commission” means the United States Securities and Exchange Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Hong Kong” means the Hong Kong Special Administrative Region of the PRC.
“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” shall have the meaning ascribed to such term in Section 3.1(b).
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“PRC” means the People’s Republic of China, but solely for purposes of this Agreement, excluding Hong Kong, Macau Special Administrative Region and Taiwan.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means any subsidiary of the Company, and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
ARTICLE II.
PURCHASE AND SALE
2.1 Purchase and Sale of Ordinary Shares. Upon the terms and subject to the conditions set forth herein, the Purchaser hereby agrees to purchase from the Company, and the Company hereby agrees to sell and issue to the Purchaser or the Purchaser’s designated parties by executing and delivering the Notice Letter in the form, or substantially in the same form, of Exhibit II, that number of Class A ordinary shares of a par value of US$0.000125 each of the Company (the “Ordinary Shares”) in exchange for Ziitech Shares (or, the “Purchase Price”) as specified below the Purchaser’s name on the signature page of this Agreement and next to the heading “Purchased Shares” and “Purchase Price”, respectively. The Ordinary Shares issued to the Purchaser pursuant to this Agreement shall be referred to herein as the “Purchased Shares”.
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2.2 Closing.
(a) Closing. Subject to Section 2.3, the closing of the purchase and sale of the Purchased Shares hereunder (the “Closing”, and the date of Closing, the “Closing Date”) pursuant to Section 2.1 shall take place remotely via the electronic exchange of documents and signatures within ten (10) Business Days, or such other later date as the Company and the Purchaser may mutually agree upon.
(b) Payment and Delivery. On the Closing Date, the Purchaser shall pay its Purchase Price to the Company by delivering an updated register of members and a true copy of share certificate certified by the registered agent of Ziitech, be duly filed to and maintained by the Australian Securities and Investments Commission or other appropriate institutions, reflecting the Company as the holder of all the Ziitech Shares, and the Company shall deliver an extract of the updated register of members of the Company evidencing the allotment and issuance of the Purchased Shares to the Purchaser or the Purchaser’s designated parties.
2.3 Closing Conditions.
(a) The obligation of the Company to sell, issue and deliver the Purchased Shares to the Purchaser as contemplated by this Agreement is subject to the satisfaction, on or before the Closing Date, of each of the following conditions, any of which may only be waived in writing by the Company in its sole discretion:
(i) the accuracy in all material respects of the representations and warranties of the Purchaser contained herein when made and on the Closing Date;
(ii) all closing conditions specified set forth in ARTICLE VI of the Share Transfer Agreement shall have been completed or waived by the Company; and
(iii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing shall have been performed.
(b) The obligation of the Purchaser to purchase and pay for the Purchased Shares as contemplated by this Agreement is subject to the satisfaction, on or before the Closing Date, of the following conditions, any of which may only be waived in writing by the Purchaser in its sole discretion:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) of the representations and warranties of the Company contained herein when made and on the Closing Date (unless as of a specific date therein in which case they shall be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing shall have been performed; and
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(iii) the execution, delivery and performance by the Company of this Agreement shall have been approved by the Board of Directors.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Subject to such exceptions as may be specifically set forth in the disclosure schedule delivered by the Company to the Purchaser as of the date hereof and attached hereto as Schedule I (the “Disclosure Schedule”), the Company hereby makes the following representations and warranties to the Purchaser:
(a) Subsidiaries. The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b) Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective memorandum and articles of association or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity, to the extent the concept of good standing applies, in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
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(d) No Conflicts. The execution, delivery and performance by the Company of this Agreement, the sale and issuance of the Purchased Shares and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s memorandum and articles of association or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Consents and Approvals. The Company is not required to obtain any prior consent, waiver, authorization or order of, give any prior notice to, or make any prior filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of this Agreement, other than approval(s) by resolutions of the Board of Directors (collectively, the “Required Approvals”).
(f) Valid Issuance. The Purchased Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in this Agreement.
3.2 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
(a) Organization; Authority. The Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement and performance by the Purchaser of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of the Purchaser. This Agreement has been duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
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(b) Restricted Securities. The Purchaser (i) understands that the Purchased Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law, (ii) is acquiring the Purchased Shares as principal for its own account and not with a view to or for distributing or reselling such Purchased Shares or any part thereof in violation of the Securities Act or any applicable state securities law, (iii) has no present intention of distributing any of such Purchased Shares in violation of the Securities Act or any applicable state securities law, (iv) has no direct or indirect arrangements or understandings with any other persons to distribute or regarding the distribution of such Purchased Shares in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Purchaser’s right to sell the Purchased Shares pursuant to a registration statement or otherwise in compliance with applicable federal and state securities laws), and (v) is acquiring the Purchased Shares hereunder in the ordinary course of its business.
(c) Purchaser Status. At the time the Purchaser was offered the Purchased Shares, it was, and as of the date hereof it is, and on the Closing Date, it will be either: (i) an “accredited investor” as defined in Rule 501(a) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act. If it is not a U.S. Person (as defined in Regulation S), the Purchaser (i) acknowledges that the certificate(s) representing or evidencing the Purchased Shares shall contain a customary restrictive legend restricting the offer, sale or transfer of any Purchased Shares except in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration, (ii) agrees that all offers and sales by the Purchaser of the Purchased Shares shall be made pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from, or a transaction not subject to the registration requirements of, the Securities Act, (iii) represents that the offer to purchase the Purchased Shares was made to the Purchaser outside of the United States, and the Purchaser was, at the time of the offer and will be, at the time of the sale and is now, outside the United States, (iv) has not engaged in or directed any unsolicited offers to purchase the Purchased Shares in the United States, (v) is not a Distributor (as such terms are defined in Rule 902(k) and 902(d), respectively, of Regulation S), (vi) has purchased the Purchased Shares for its own account and not for the account or benefit of any U.S. Person (as defined in Regulation S), (vii) is the sole beneficial owner of the Purchased Shares and has not pre-arranged any sale with the Purchaser in the United States, and (viii) is familiar with and understands the terms and conditions and requirements contained in Regulation S, specifically, without limitation, the Purchaser understands that the statutory basis for the exemption claimed for the sale of the Purchased Shares would not be present if the sale, although in technical compliance with Regulation S, is part of a plan or scheme to evade the registration provisions of the Securities Act. If the Purchaser is in Australia, the Purchaser represents and warrants that it is a “sophisticated investor” for the purposes of the Corporations Act 2001 (Cth) (Corporations Act) as the amount payable for the Purchased Shares is at least A$500,000 and therefore, it is a person to whom offers and issues of the Purchased Shares may lawfully be made without the need for disclosure to investors under Chapter 6D of the Corporations Act.
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(d) Experience. The Purchaser is a sophisticated purchaser with knowledge and experience in financial and business matters such that the Purchaser is capable of evaluating the merits and risks of the investment in the Purchased Shares. The Purchaser is able to bear the economic risks of an investment in the Purchased Shares and is or will be able to afford a complete loss of such investment. The Purchaser understands and acknowledges that the Company has or may have inside information concerning the Company and its Affiliates including, but not limited to, the short term and long-term plans of the Company and its Affiliates. The Purchaser understands and acknowledges that such information may be indicative of a value of the Purchased Shares that is or may be substantially different than the value reflected in this Agreement and the Company may be unable or unwilling to disclose this information to the Purchaser, even though such information may be material to its decision to purchase the Purchased Shares on the terms set forth herein. With full recognition of the foregoing, and acknowledging that the Company is or may be in possession of material non-public information of the nature described above, and after discussing these matters with its counsel and such other advisors as it deems appropriate, the Purchaser wishes to consummate the transactions contemplated under this Agreement on the terms set forth herein.
(e) General Solicitation. The Purchaser is not purchasing the Purchased Shares as a result of any advertisement, article, notice or other communication regarding the Purchased Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of the Purchaser, any other general solicitation or general advertisement.
(f) Access to Information. The Purchaser acknowledges that it has had the opportunity to review this Agreement (including all exhibits and schedules hereto) and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Purchased Shares and the merits and risks of investing in the Purchased Shares; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
(g) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, the Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with the Purchaser, directly or indirectly executed any purchases or sales, including Short Sales (as defined in Rule 200 of Regulation SHO under the Exchange Act), of the securities of the Company during the period commencing as of the time that the Purchaser first engaged in discussion (written or oral) with the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the Closing Date. The Purchaser has maintained the confidentiality of all disclosures made to it in connection with the transaction contemplated hereunder (including the existence and terms hereof), except on a need-to-know basis to the Purchaser’s representatives, including, without limitation, its and its Affiliates’ officers, directors, partners, legal and other advisors, employees, agents.
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(h) Compliance. The Purchaser confirms that the transactions contemplated under this Agreement and the purchasing of Purchased Shares are all in compliance and not in violation of the Securities Act or any applicable state securities law. The Purchaser shall, and shall cause its designated parties to, comply with all applicable securities laws and regulations in connection with the offer, resale, purchase, holding, or transfer of any securities of the Company. The Purchaser shall, and shall cause its designated parties to, to the extent applicable, timely make, file and amend all reports and required under Sections 13(d) and 13(g) of the U.S. Securities Exchange Act of 1934, as amended with respect to their respective beneficial ownership of securities of the Company.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Certain Transactions and Confidentiality. The Purchaser covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced. The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company, the Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information provided to the Purchaser.
4.2 Lock-up. The Purchaser agrees that it will not, and will cause its designated parties not to, during the period commencing on the date hereof and ending on the 180th day after the Closing Date, (i) offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any of the Purchased Shares, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Purchased Shares. The Purchaser further understands that the provisions of this Section 4.2 shall be binding upon the Purchaser’s legal representatives, successors and assigns.
ARTICLE V.
MISCELLANEOUS
5.1 Termination. This Agreement may be terminated by (i) mutual consent of the Company and the Purchaser; or (ii) by the Company if the Closing has not occurred within three (3) months or other longer period solely decided by the Company after the signing date.
5.2 Fees and Expenses. Each party shall pay fees and expenses, by itself, of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
5.3 Entire Agreement. The Agreement, together with the exhibits and schedules hereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
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5.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Business Day, (b) the next Business Day after the time of transmission, if such notice or communication is delivered via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Business Day or later than 5:30 p.m. (New York City time) on any Business Day, (c) the second (2nd) Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
5.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser (other than by merger). Without prior written consent of the Company, the Purchaser or its designated parties may not assign any or all of its rights or obligations under this Agreement to any Person.
5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
5.9 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
5.10 Survival. The representations and warranties contained herein shall terminate and be without further force or effect on the Closing Date.
5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
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5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchaser and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in this Agreement and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.
(Signature Pages Follow)
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[SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Share Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Pintec Technology Holdings Limited | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address for Notice: | ||
| E-Mail: | ||
[SIGNATURE PAGES TO SHARE PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Share Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: _________________________________
Signature of Authorized Signatory of Purchaser: _________________________________
Email Address of Purchaser: _________________________________
Address for Notice to Purchaser: _________________________________
Purchase Price: _________________________________
Purchased Shares: _________________________________
Exhibit 99.4
ZIITECH PTY LTD
SHAREHOLDERS AGREEMENT
Table of contents
| 1. | Interpretation | 1 |
| 2. | Definitions | 2 |
| 3. | Share capital | 4 |
| 4. | Shareholding structure | 4 |
| 5. | Appointment and Termination of Appointment of Directors | 5 |
| 6. | Meetings and voting | 6 |
| 7. | Management of the company | 8 |
| 8. | Accounts | 9 |
| 9. | Funding | 10 |
| 10. | Inconsistency with constitution | 11 |
| 11. | Third party interest in shares | 11 |
| 12. | Transfer of shares | 11 |
| 13. | Right of First Refusal | 12 |
| 14. | Compulsory transfer of shares | 13 |
| 15. | Tag-along and drag-along rights | 14 |
| 16. | Determination of fair value | 15 |
| 17. | Dividend Right | 16 |
| 18. | Liquidation Right | 16 |
| 19. | Anti – Dilution Right | 16 |
| 20. | Most Favored Nation Treatment | 17 |
| 21. | Full Time, Non-Competition and Non-Solicitation Obligations of Key Employees | 17 |
| 22. | Competition restraint | 18 |
| 23. | Dispute | 18 |
| 24. | Covenant by the company | 19 |
| 25. | Confidentiality | 19 |
| 26. | Mutual covenants | 20 |
| 27. | Exclusion of implied relationships | 20 |
| 28. | Term of agreement | 20 |
| 29. | Notices | 21 |
| 30. | Conflict with constitution | 21 |
| 31. | Miscellaneous | 21 |
| Schedule 1 | Error! Bookmark not defined. | |
| Annexure A – Deed of accession | Error! Bookmark not defined. |
THIS AGREEMENT dated 27 October 2022, as amended on 1 September 2023 and _________ 2025
| BETWEEN | ZIITECH PTY LTD (ACN 635 021 779) (Company) |
| AND | Shareholders listed in item 2 of Schedule 1 (Shareholders) |
BACKGROUND
| A. | The Company was incorporated under the Corporation Act and registered in Victoria as a proprietary company on 22 July 2019. |
| B. | The Company has issued 2,862,085 ordinary shares before the date of this agreement. |
| C. | The shareholders acknowledge there is an existing and enforcing shareholders agreement entered by the shareholders dated 27 October 2022 and as amended on or around 1 September 2023 (existing shareholder agreement). |
| D. | Pintec Technology Holdings Ltd (“PT”), a public company which was incorporated in Cayman Islands and is currently listed on NASDAQ intends to purchase 715,521 existing ordinary shares from certain shareholders of the Company. |
| E. | All shareholders and the Company have agreed and passed a resolution to approve and facilitate the above-mentioned shares transfer transaction. |
| F. | Upon completion of the transfer of shares described in item D, PT will hold 25% of all of the shares in the Company on a fully-diluted and as-converted basis, i.e. 715,521 ordinary shares in the Company. |
| G. | The shareholders have agreed to enter into this new shareholder agreement to replace any existing shareholder agreements. |
OPERATIVE PART
| 1. | Interpretation |
This agreement is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that state.
In the interpretation of this agreement:
| (a) | References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation; |
| (b) | Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders; |
| (c) | Grammatical forms of defined words or phrases have corresponding meanings; |
| (d) | Parties must perform their obligations on the dates and times fixed by reference to the capital city of Victoria; |
| (e) | Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia; |
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| (f) | If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day; |
| (g) | References to a party are intended to bind their executors, administrators and permitted transferees; and |
| (h) | Obligations under this agreement affecting more than one party bind them jointly and each of them severally. |
| 2. | Definitions |
In this agreement, unless the context otherwise requires:
| (a) | Affiliate means a person that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified person. |
| (b) | Board means the Board of Directors, and includes any committee of that Board; |
| (c) | Board Meeting means a meeting of the Board (or any committee of the Board) duly convened and held in accordance with this Agreement and the Constitution; |
| (d) | Change in Control of a Shareholder means the acquisition by any person or corporation, either alone or together with any associate of that person or corporation, |
| (i) | of a relevant interest in more than 50% of the issued voting capital of the Shareholder; or |
| (ii) | where the Shareholder is a company, resulting in a different person or group of persons who will control the composition of the board of directors or more than 50% of the shares giving a right to vote at general meetings; or |
| (iii) | where the Shareholder is the trustee of a unit trust, a relevant interest in more than 50% of the issued units in that trust; |
| (e) | Dispose means to grant options or rights of first refusal over, sell, transfer, assign, part with the benefit of, declare a trust of, encumber or deal with; |
| (f) | Deemed Liquidation Event means any of the following events: |
| (i) | any consolidation, amalgamation, scheme of arrangement or merger of the Company and/or other Subsidiaries collectively operating the majority of the business of the Group (collectively, the “Major Group Companies”) with or into any other person or other reorganization in which the shareholders of the Company and/or the Major Group Companies immediately prior to such consolidation, amalgamation, merger, scheme of arrangement or reorganization own less than fifty percent (50%) of the surviving entity’s voting power in the aggregate immediately after such consolidation, merger, amalgamation, scheme of arrangement or reorganization, or any transaction or series of related transactions in which in excess of fifty percent (50%) of the Company’s and/or the Major Group Companies’ voting power is transferred; |
| (ii) | a sale, transfer, lease or other disposition of all or substantially all of the assets of the Group taken as a whole (or any series of related transactions resulting in such sale, transfer, lease or other disposition of all or substantially all of the assets of the Group taken as a whole); or |
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| (iii) | the exclusive license of all or substantially all of the Group’s intellectual property taken as a whole to a third party. |
| (g) | Effective Date means the date of this Agreement; |
| (h) | Encumbrance means security interest (under the Personal Property Securities Act 2009), pledge, lien, assignment, or any other security arrangement; |
| (i) | Group means the Company and each of its Subsidiaries. |
| (j) | IPO means an initial public offering of the units in conjunction with a listing or quotation of the units on a recognised stock exchange; |
| (k) | Insolvency event means in relation to an entity: |
| (i) | a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertaking of the entity; |
| (ii) | the entity suspends payment of its debts generally; |
| (iii) | the entity is or becomes unable to pay its debts when they are due or is unable to pay its debts within the meaning of the Corporations Act; |
| (iv) | the entity enters into or resolves to enter into any arrangement or compromise with, or assignment for the benefit of, its creditors or any class of them; |
| (v) | an application or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator, to the entity or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the entity otherwise than for the purpose of an amalgamation or reconstruction which has the prior consent of all shareholders (which consent will not be unreasonably withheld); |
| (vi) | the entity becomes bankrupt; |
| (vii) | an application is made for the bankruptcy of the entity; or |
| (viii) | anything analogous to the above occurring in a jurisdiction outside Australia. |
| (l) | Ordinary Resolution means: |
| (i) | In relation to a board meeting, a resolution approved by more than 50% in number of those directors present, whether in person or by telephonic or audio-visual means, and entitled to vote at a duly convened and held board meeting at which a quorum is present and including approval by the directors appointed by the PT Shareholders; |
| (ii) | In relation to a shareholder meeting, a resolution approved by the holders of more than 50% of the issued shares present, including approval by the PT Shareholder, whether in person or by proxy or by representative, and entitled to vote at a duly convened and held shareholder meeting at which a quorum is present; |
| (m) | PT Affiliate means any Affiliate of Pintec Technology Holdings Ltd that is not (a) the Company, (b) any subsidiary of the Company or (c) any entity controlled by the Company; |
| (n) | PT Shareholder means each of (i) Pintec Technology Holdings Ltd and (ii) any PT Affiliate that is a shareholder of the Company from time to time, during such time when it is a shareholder; |
| (o) | Special Resolution means: |
| (i) | In relation to a Board Meeting, a resolution approved by more than 50% in number of those directors present, whether in person or by telephonic or audio-visual means, and entitled to vote at a duly convened and held board meeting at which a quorum is present; |
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| (ii) | In relation to a shareholder meeting, a resolution approved by the holders of more than 75% of the issued shares present, including approval by the PT Shareholder, whether in person or by proxy or by representative, and entitled to vote at a duly convened and held shareholder meeting at which a quorum is present. |
| (p) | Subsidiary means a subsidiary of the Company within the meaning of the Corporations Act but so that: |
| (i) | a trust may be a Subsidiary, for the purposes of which a unit or other beneficial interest will be regarded as a share; and |
| (ii) | a corporation or trust may be a Subsidiary of a trust if it would have been a Subsidiary if that trust were a corporation. |
| 3. | Share capital |
| (a) | Classes of shares |
The shareholders acknowledge the constitution provides that subject to section 259C of the Act, the board may, on behalf of the company, issue, grant options over or otherwise dispose of unissued shares to any person on the terms, with the rights, and at the times that the board decides.
| (b) | Ordinary shares |
The shareholders further acknowledge that at the date of this agreement, the company has issued certain ordinary shares with the following rights and privileges:
| (i) | The right to attend all meetings of the company and to one vote for every share held; |
| (ii) | The right to participate in the dividends declared on that class of share; and |
| (iii) | On a winding up of the company, the right to repayment of capital and the participation in the division of surplus assets. |
| (c) | Class C shares |
The shareholders further acknowledge that at the date of this agreement, the Company has issued certain non-voting Class C shares.
| 4. | Shareholding structure |
| (a) | Shareholders |
On the Effective Date, the shareholdings of the shareholders are as listed as item 2 of Schedule 1 and, to the extent that any of these shares have not yet been issued, the parties agree to do all acts and things necessary to cause those shares to be issued as soon as possible.
| (b) | Issue of additional shares |
| (i) | Except the following: |
| (1) | As of 1 July 2023, the Company has adopted "Evergreen Provisions," which shall facilitate the annual issuance of a new class of shares, referred to as Class C shares (or other classes shares) which carry no voting rights, to Zii Ever Green Pty Ltd ATF Zii Ever Green Unit Trust. The issuance shall be subject to the following conditions: |
| A. | The new Class C shares shall be issued annually for a period of three years, commencing from 1 July 2023. |
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| B. | During the initial two-year period, the number of Class C shares issued each year shall be in proportion to 5% of the total number of issued shares at the time of issuance. |
| C. | Subsequently, from the third year onward, the annual issuance of Class C shares shall be in proportion to 2.5% of the total number of issued shares at the time of issuance. It is hereby acknowledged and agreed upon by the shareholders that the issuance of shares under this provision will undergo a review by the board and the shareholders at the commencement of the third year. Any such issuance shall necessitate the approval of a special resolution passed by the shareholders. |
| D. | The issuance of Class C shares shall be subject to compliance with applicable laws, regulations, and corporate governance requirements. |
| E. | Class C shares shall carry the same rights and privileges as the existing ordinary shares of the Company, except those shares carry no voting rights. |
| F. | The Company shall maintain accurate records of all issuances of Class C shares, and such records shall be available for inspection by relevant stakeholders. |
no other shares may be issued (‘issue shares’) unless they have first been offered to each shareholder (‘entitled shareholders’) in proportion to their existing shareholding.
| (ii) | In the event that any entitled shareholder does not wish to acquire its proportion of the issue shares, the other entitled shareholders (‘acquiring shareholders’) will be entitled to acquire the relevant issue shares in the proportions that such acquiring shareholder’s shares bare to the total shares held by acquiring shareholders. |
| (iii) | In the event that any of the issue shares are not acquired by entitled shareholders, the company may issue any or all of the offer shares to another person. |
| (c) | Acquirer to be bound |
Before any shares may be issued to a person who is not a current shareholder, each of the shareholders and the company must ensure that the acquirer first enters into this agreement.
| 5. | Appointment and Termination of Appointment of Directors |
| (a) | The maximum number of Directors at any time is three (3) unless otherwise determined by shareholders resolutions, including approval by the PT Shareholder. |
| (b) | Except as otherwise specified in this Agreement or the Act, the shareholders acknowledge that Wei (Wei) Wei remains the director of the company, and PT will be entitled to have an exclusive right to appoint two directors, for the avoidance of doubt, at any time, the number of the Directors and composition of the Board shall not change without PT’s approval. Notwithstanding anything to the contrary in this Agreement, the PT Shareholders shall be entitled, but not obligated, to appoint two directors of all three Directors of the Board and remove and replace any Director so appointed, in each case by depositing a notification of appointment or removal at the registered office of the Company. |
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| (c) | On the Effective Date, the Directors are as follows: |
| (i) | Wei (Wei) Wei |
| (ii) | Tony Guan Chan |
| (iii) | Kyu Ha Lee |
| (d) | Managing director |
Wei Wei will be the managing director of the company until he resigns, retires, dies or is replaced by a Special Resolution of the Board. He will be responsible for the management and operation of the company. No action or decision may be taken by the managing director in relation to any matter which requires a resolution of the Board or the shareholders until such resolution has been passed.
| (e) | Secretary |
Tony Guan Chan will act as secretary of the company and he will continue to act as secretary until they resign, retire, die or are removed by an Ordinary Resolution of the Board.
| (f) | Alternate directors |
A director may appoint a person to be an alternate director in their place during any period in which the director is incapacitated or is unable to attend a meeting by reason of illness or injury, or is on scheduled vacation or is absent from Victoria on work-related business.
| (g) | Conflict of interest – Company officers |
A company officer may not vote or make any decision where a conflict of interests exists and must advise the board immediately a conflict becomes apparent.
| (h) | Conflict of interest – Shareholder |
A shareholder may vote at a meeting of shareholders notwithstanding a conflict of interests provided that the conflict of interest is disclosed to the meeting.
| 6. | Meetings and voting |
| (a) | Chairman |
The directors will appoint Wei Wei as chairman of the Board and the chairman for all shareholder meetings.
| (b) | Casting vote |
The chairman of a Board Meeting or a shareholder meeting shall not have a casting vote in the event of an equality of votes.
| (c) | Voting at shareholder meetings |
At a shareholder meeting every person present as a holder of ordinary shares or as a representative, proxy or attorney of a holder of ordinary shares is entitled to one vote for each share held by that person.
| (d) | Decisions by ordinary resolution |
Subject to any provision to the contrary in this agreement or the Corporations Act, all resolutions of the shareholders and directors are to be by Ordinary Resolution.
| (e) | Board meetings |
Unless the directors otherwise agree, a Board Meeting must be convened at least once every three calendar months and each director is to be given at least seven business days notice of the date and agenda of each meeting.
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| (f) | Calling of board meetings |
Any director may at any time convene a meeting of the Board and unless the directors otherwise specially agree, notice of all Board Meetings must be communicated to all directors by the secretary in writing by fax or email.
| (g) | Calling of shareholder meetings |
A meeting of shareholders may be called on 5 days written notice to shareholders by email or fax by:
| (i) | the Board; |
| (ii) | a director; or |
| (iii) | shareholders of any class of shares representing at least 5% of the issued capital. |
| (h) | Minutes |
The company must cause minutes of:
| (i) | Each shareholder meeting to be promptly prepared and copies circulated to the shareholders; and |
| (ii) | Each Board Meeting to be promptly prepared and tabled for approval at the next board meeting and, if approved by the directors present at that board meeting, the chairman is to sign those minutes which then are prima facie evidence of the proceedings and decisions of the Board Meeting to which they relate. |
| (i) | Quorum requirements |
The quorum requirement for:
| (i) | A shareholder meetings is: |
| (1) | at least 50% of all issued shares; and |
| (2) | The PT Shareholders are in attendance; and |
| (ii) | A board meeting is two (2) directors, which must include at least one (1) director appointed by the PT Shareholders. All Board resolutions shall not be passed without the approval of at least one (1) director appointed by the PT Shareholders. |
| (j) | Adjournment where quorum not present |
| (i) | If within 30 minutes from the time appointed for a shareholder meeting or board meeting, a quorum is not present, the meeting will stand adjourned to the same day in the next week at the same time and place, except if that day is a public holiday in which case the meeting will be adjourned to the same time and place on the next business day after that day. No notice of the adjourned meeting is required to be given to those entitled to notice of the meeting. |
| (ii) | If at such adjourned shareholder meeting or Board Meeting a quorum is not present, then any two or more shareholders or any director present will constitute a quorum and may transact the business for which the meeting was called except in respect of any matters which require a Special Resolution. |
| (k) | Telephone meetings |
If all shareholders or directors agree, their meetings may be held by telephone or by audio-visual means.
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| (l) | Written resolutions |
Subject to the Corporations Act, if all of the directors or all of the shareholders sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, a resolution in those terms is deemed to have been passed at a Board Meeting or a shareholder meeting held at the date and time at which the document was last signed by a director or shareholder.
| 7. | Management of the company |
| (a) | Principal activity |
The shareholders agree that the company's principal activity will be to engage in the business of development and sale of software solutions for Small and Medium Enterprises.
| (b) | Shareholder covenants |
Each shareholder covenants with the other shareholders:
| (i) | To co-operate and use its reasonable endeavours to ensure that the Company and its subsidiaries successfully carry on the Company’s business; |
| (ii) | Not to use confidential information of the Company or any of its subsidiaries in a way which damages, or is reasonably likely to damage the company, or any of the other shareholders or any of the company's subsidiaries; |
| (iii) | Not to unreasonably delay any action, approval, direction, determination or decision required of it; |
| (iv) | To make approvals or decisions that are required of it in good faith, in the best interests of the company, its subsidiaries and the carrying on of the company’s business as a commercial venture; and |
| (v) | To be just and faithful in its activities and dealings with the other shareholders and not to act contrary to the interests of the company or any of the company's subsidiaries. |
| (c) | Matters requiring a Special Resolution of shareholders |
Each of the following matters must not be acted upon by the company or any shareholder, director or other officer or employee of the company unless it has first been approved by a Special Resolution of shareholders (for the avoidance of doubt, subject to the Corporations Act, the matters below are all the matters that require a Special Resolution of the shareholders, and all other matters of the Company shall be decided by the Board and not to be decided by the shareholders’ meeting):
| (i) | Except as specifically contemplated by this agreement: |
| (1) | The issue of shares; or |
| (2) | The issue or variation of convertible notes, rights, options or other securities in respect of any shares; or |
| (3) | The variation of any rights attaching to issued or unissued shares; or |
| (4) | Any amendment to the constitution. |
| (ii) | Other than for full value and in the ordinary course of business, the transfer, sale, disposal or surrender of any substantial asset of the company. |
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| (iii) | The entering into of any agreement or arrangement with: |
| (1) | A shareholder; |
| (2) | An associate (as defined in the Corporations Act) of a shareholder; or |
| (3) | A trust under which a shareholder or an associate of a shareholder may benefit. |
| (iv) | The entering into any agreement or arrangement that is not arm’s length and in the ordinary course of business. |
| (v) | Any loans to directors or shareholders. |
| (vi) | The sale of all or a substantial part of the business of the company or a subsidiary. |
| (d) | Matters requiring a Resolution of the Board of the Company |
Each of the following matters must not be acted upon by the Company or any shareholder, director or other officer or employee of the Company unless it has first been approved by a Resolution of the Board of the Company:
| (i) | the adoption of the annual budget, business plan and the establishment of performance milestones or corporate benchmarks for any Group, and any material deviations therefrom; |
| (ii) | any material change or cessation of the existing business of any Group or exploration of new business direction by any Group; |
| (iii) | any incurrence of expenditure except for those in accordance with the approved annual budget, business and financial plan; |
| (iv) | the adoption of, amendment to, suspension or termination of the employee incentive plans; |
| (v) | the appointment, removal, replacement and the change of the compensation of the management officers of the Group; |
| (vi) | any purchase of or investment in any other entity by any Group; |
| (vii) | any transfer or otherwise disposal of, or incurrence of any lien on properties, assets, business or equity securities; |
| (viii) | initiation or commencement of any litigation, arbitration, investigation, proceeding or other claim by any Group, or settlement, offering or proposing to settle any litigation, arbitration, investigation, proceeding or other claim involving or against any Group; |
| (ix) | any action to authorize, approve or enter into any agreement or obligation with respect to any of the above actions. |
| (x) | other matters except matters that require the consent of the shareholders. |
| 8. | Accounts |
| (a) | Proper accounts |
The company must keep proper accounting records and accounts as required by the Corporations Act.
| (b) | Financial year |
Subject to an Ordinary Resolution of directors to the contrary, the financial year for the company will be 1 July to 30 June.
| (c) | Frequency of preparation of accounts |
The Company must prepare and provide to each director in respect of the Company and its subsidiaries, as soon as practicable after, and in any event within 30 days after the end of each three month period of a financial year, an unaudited statement of financial performance, an unaudited statement of financial position, an unaudited monthly cash flow statement for the preceding calendar month, and for the then current financial year to date prepared in reasonable detail using generally accepted accounting principles consistently applied.
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The Company must prepare and provide to each director in respect of the Company and its subsidiaries, as soon as practicable after, and in any event within 30 days after the end of each quarter period of an unaudited financial statement for such quarter.
| (d) | Annual accounts |
The Company must:
| (i) | Cause the accounts to be prepared in relation to each financial year and forwarded to each shareholder within three months after the end of the relevant financial year; |
| (ii) | Ensure that the accounts are prepared in accordance with approved accounting standards and audited by the Company's auditor; and |
| (iii) | Forward copies of the draft form of the accounts to each director as soon as practicable after receipt from the Company's auditor. |
| (e) | Signing of accounts |
Subject to approval of the accounts by the Board, the accounts referred to are to be signed by at least one director.
| (f) | Inspection Right |
The Company shall permit PT have, at the Company’s expense, (i) the right to inspect facilities, records and books of the Group at any time during regular working hours upon reasonable prior notice to the Group, (ii) the right to discuss the business, operations and conditions of the Group with their respective directors, officers, employees, accountants, legal counsel and investment bankers, and (iii) the right to be informed by the Company immediately upon the occurrence of any material change of the business plan or any change of senior management.
| (g) | Audit |
PT may, at the Company’s expense, engage a qualified accounting firm to examine the financial records and procedures of the Group, with reasonable prior notice to the Company, and other parties hereby and the Company shall provide reasonable assistance or cooperation with such accounting firm.
| 9. | Funding |
| (a) | Funding obligations |
Nothing in the Agreement obliges any Shareholder to provide any further funding or financial support to the Company or to guarantee or secure any obligation of the Company.
| (b) | Encumbering shares |
The Shareholders must not provide their Shares as security, or create or give any Encumbrance over their Shares in favour of any party without the prior written consent, which may include/specify any condition(s) which must be fulfilled, of the Shareholders by Ordinary Resolution which may be withheld by each of them at their absolute discretion.
This clause does not apply to any floating charge over the assets of a Shareholder that is in existence on or before the date of this Agreement.
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| (c) | Company’s borrowings |
This clause does not prohibit external borrowings by the Company, on terms and conditions determined by the Board.
| 10. | Inconsistency with constitution |
The shareholders and the company agree that:
| (a) | To the extent of any inconsistency between the terms of this agreement and the constitution, the terms of this agreement shall prevail; and |
| (b) | The constitution shall be interpreted as being modified by and subject to the express terms of this agreement. |
| 11. | Third party interest in shares |
Each shareholder agrees that it may not, without the written consent of each other shareholder, give or create an interest in any shares including by declaring a trust or giving an option to purchase, right of first refusal, security interest under the Personal Property Securities Act or other Encumbrance.
For the avoidance of doubt, PT may freely transfer the shares held by it to any person without the consent of the Board or any other shareholders and without complying with the restrictions or procedures under this clause, clause 13, clause 14, clause 15 and clause 16 hereof. PT’s special rights hereof shall automatically be terminated if PT holds less than 50% of the shares of the Company held by PT at the date of this Agreement.
Notwithstanding the aforementioned provisions, without the written consent of each other shareholder, none of the shareholders may transfer any shares held by it to any competitor as listed on Schedule 2 hereunder. Such list of competitors may be updated once by the Board of the Company per annum.
| 12. | Transfer of shares |
| (a) | No shares may be Disposed of and the Company must not register a transfer of shares, nor acknowledge that any person has any right in respect of any shares unless and until: |
| (i) | The transferee replaces any existing shareholder loans made by the transferor shareholder; |
| (ii) | The transferee first executes and delivers to the Company and each of the other shareholders, a deed agreeing to be bound by the terms and conditions of this agreement, and agreeing to assume the obligations of the transferor shareholder under the constitution and this agreement; and |
| (iii) | If the transferee is a company, each of the directors and shareholders of the transferee executes a deed agreeing to be bound by the obligations of a shareholder under this agreement. |
| (b) | None of Jiesi Zhang, Nolan Taing, Udesignlab Investments Pty Ltd (as the holding entity of Wei Wei), Peng Innovation Pty Ltd (as the holding entity of Xiaodong Peng), TALENTOP PTY LTD (as the holding entity of Hui Ke Li), Wew Group Pty Ltd (as the holding entity of Xiaomin Wu) and Wzw Pty. Ltd. (as the holding entity of Xiaomin Wu) may transfer any shares of the Company directly or indirectly held by him or it without the written consent of PT. |
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| 13. | Right of First Refusal |
| (a) | Transfer notices |
| (i) | Before disposing of its shares, the transferor shareholder must give a transfer notice to the company specifying: |
| (1) | The number of transfer shares it wishes to Dispose of, which may be all or part of the shares it holds; and |
| (2) | The price at which the transferor shareholder is willing to sell the transfer shares. |
| (ii) | The transfer notice will constitute the company, the agent of the transferor shareholder for the sale of the transfer shares at the transfer price during the transfer period to all other shareholders, and will not be revocable except with the consent of all other shareholders. |
| (iii) | Within ten business days after the receipt of a transfer notice, the company must serve a copy of it on all other shareholders. |
| (b) | Transfer price |
| (i) | If the price stated in the transfer notice is accepted by all of the other shareholders within ten business days of the transfer notice being served, such price will be the transfer price. |
| (ii) | If such price is not so accepted, the fair value of the transfer shares will be determined in accordance with the provisions hereof and will then constitute the transfer price. |
| (c) | Transfer period |
The transfer period will be 60 days after acceptance of the price or the determination of the fair value.
| (d) | Offer of transfer shares to shareholders |
Promptly following determination of the transfer price, the transfer shares must be offered by the company by notice in writing to all other shareholders pro rata to their holdings. Such offer will be open for acceptance at any time within the transfer period. Every such offer must specify the total number of transfer shares, the number of transfer shares in the shareholder’s pro rata transfer entitlement, and the transfer price. Each offer must be accompanied by a form of application for use by the shareholder in applying for its pro rata entitlement and for any shares in excess of such pro rata transfer entitlement which it wishes to purchase.
| (e) | Acceptance of offer by shareholders |
| (i) | A shareholder may apply for some only of the transfer shares within the transfer period, and the transferor shareholder will be bound upon payment to transfer that number of transfer shares to the shareholder as it has applied for. |
| (ii) | If not all other shareholders accept the full amount of transfer shares in their pro rata transfer entitlement, any transfer shares not so accepted will be used to satisfy requests from other shareholders as nearly as may be in proportion to their requests for transfer shares in excess of their pro rata transfer entitlement. |
| (iii) | The directors must forthwith give notice of such allocations to the transferor shareholder and the shareholders, to whom the transfer shares have been allocated, and must specify in the said notice the place and time, being within 60 days after the date of such notice at which the sale of the transfer shares so allocated will be completed. |
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The transferor shareholder will be bound upon payment to transfer the transfer shares so allocated to the relevant shareholders.
| (f) | Transfers to third parties |
If by the end of the transfer period and Tag-Along Notice Period (as defined below), the directors have not received acceptances from shareholders for all the transfer shares then they must forthwith give notice in writing of that fact to the transferor shareholder. The transferor shareholder will then be entitled at any time within 90 days after the date of the directors' notice to sell and transfer all of the remaining transfer shares, which have not been accepted to any person at any price, being not less than the transfer price.
| (g) | Fractions |
If any shares to be transferred pursuant to this agreement are not capable of being offered or allocated without involving fractions, the secretary will allocate such fractional interests amongst the accepting shareholders as they think fit.
| (h) | Attorney for transferor shareholder |
| (i) | A transferor shareholder, having become bound to transfer any shares pursuant to this agreement, must deliver to the shareholders duly executed transfers in respect of such shares in favour of the shareholders against payment by them of the price due in respect thereof. If the transferor shareholder makes default in transferring the same, any director is hereby irrevocably and unconditionally appointed as the attorney of the transferor to complete and execute the necessary instrument of transfer of such shares and may deliver them on its behalf; the company will receive the purchase money on trust for the transferor shareholder, and will thereupon cause the shareholders to be registered as the holder of such shares. |
| (ii) | The company will not be bound to earn or pay interest on any money so held on behalf of the transferor shareholder, and will not pay such money to the transferor shareholder until it has delivered its share certificates, or an appropriate indemnity in respect of any lost certificates, to the company. The receipt of the company for such purchase money will be a good discharge to the transferor shareholder. |
| (iii) | Upon the transfer of any shares pursuant to the provisions of this agreement, the transferor shareholder will be entitled to all dividends and interest accrued in relation to those shares up to the date of transfer, and any amount paid to either the transferor shareholder or transferee shareholders in excess of such entitlement must be held by it on trust for the other. |
| 14. | Compulsory transfer of shares |
| (a) | Deemed transfer notice |
On the happening of any of the following events in respect of a shareholder, that shareholder will be deemed to have given a transfer notice in respect of all of its shares at the fair value, plus 50% of the costs of the expert appointed to determine fair value:
| (i) | a change in the persons having the effective control of the shareholder that is a corporation or trust; |
| (ii) | the shareholder dying; |
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| (iii) | the shareholder being declared bankrupt; |
| (iv) | a receiver being appointed to the shareholder; |
| (v) | a liquidator being appointed to the shareholder; or |
| (vi) | a compulsory transfer event. |
| (b) | Compulsory transfer events |
A compulsory transfer event occurs when one of the following events has occurred and continues unremedied for a period of 30 days after receipt of a notice from the remaining board requiring that it be remedied;
| (i) | The shareholder fails to fully comply with a funding obligation; |
| (ii) | The shareholder fails to observe or perform the provisions of this agreement in a way which has, or could reasonably be expected to have, a substantial adverse effect upon the company. |
| (c) | Determination of fair value |
Within 20 days of the issue of a deemed transfer notice, the board must appoint an expert to determine the fair market value of the transfer shares.
| 15. | Tag-along and drag-along rights |
| (a) | Tag-Along Right |
| (i) | If a shareholder has not exercised its right of first refusal set forth in clause 13, such shareholder shall have the right (the “Tag-Along Right”), exercisable upon written notice (a “Tag-Along Response Notice”) to the transferor shareholders within 20 days after the earlier of the full exercise or expiry of the rights of first refusal of the other shareholders under clause 13 (the “Tag-Along Notice Period”), to request that the transferor shareholder include in the proposed transfer shares up to a number of shares on a fully diluted and as-converted basis pro rata to its holdings (each such exercising shareholder, a “Tagging Person”). |
Each Tagging Person shall also deliver to the transferor shareholders, together with its Tag-Along Response Notice, the certificates or other applicable instruments representing the shares of such Tagging Person to be included in the proposed transfer shares, together with a notarized, limited power-of-attorney authorizing the transferor shareholder or its representative to transfer such shares on the terms set forth in the transfer notice. If at the termination of the Tag-Along Notice Period any shareholder shall not have elected to participate in such transfer, such shareholder shall be deemed to have waived its rights under this clause 15 (a) with respect to the transfer of its shares pursuant to the proposed transfer shares.
| (b) | Drag-Along Rights |
| (i) | If PT and other shareholders who collectively hold 75% or more shares in the company (the “Majority Shareholders”) receive a bona fide offer for the purchase of their shares and the other shareholders (having been notified of the offer) have not exercised their rights of first refusal to acquire such shares, then the Majority Shareholders may require the holders of all other shares (the “Minority Shareholders”) to join in the sale and sell their shares, and the Minority Shareholders, or any one of them shall take actions to sell their shares. |
| (ii) | For purposes of this clause an offer shall only be deemed to be a bona fide offer if the Majority Shareholders exercise their drag along rights, the sale price for each share is equal to or greater than fair value as determined by this agreement. |
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| (iii) | To provide the Minority Shareholders with the opportunity to assess the proposed transaction, at least 14 days written notice containing comprehensive details of the sale must be given, and within 14 days of the expiry of that 14 day period notice of the exercise of the drag along, right must be given. |
| (iv) | In the event that insufficient details of the sale are provided in the notice, then the 14 day period for exercise of the drag along rights shall extend to 14 days after full details of the sale are provided sufficient to enable the Minority Shareholders to properly assess the proposed sale, the credentials, reputation and financial standing of the purchaser, and the price and other terms of sale. |
| (v) | In the event of the exercise of the drag along rights then the Minority Shareholders must join in the sale, unless they are able to establish that the proposed sale is an oppression of a minority according to the principals understood in the law relating to corporations, or to purchase all of the shares held by other shareholders, in each case, on the terms and conditions not less favorable than those offered in the sale. |
| 16. | Determination of fair value |
| (a) | Determination by expert |
| (i) | If this agreement provides for the fair value of any shares to be determined, the value shall be so determined by the Board or other applicable institutions designated by the Board (Valuer). |
| (ii) | The fair value of the shares will be the value determined by the Board or the Valuer, who will act as an expert and not an arbitrator. |
| (iii) | The fair value of the relevant shares will be determined as at the date on which the transfer notice or deemed transfer notice is given, and the expert must determine the fair value of the relevant shares within 30 business days of the date of their appointment, and must provide a copy of their valuation to each shareholder. |
| (iv) | The expert so appointed may appoint a recognised, experienced and qualified valuer to determine the value of any particular asset of the company. |
| (v) | The expert’s determination shall be binding on the shareholders. |
| (b) | Matters to which the expert shall have regard |
Where an expert is appointed as aforesaid the expert:
| (i) | Shall not apply a discount for minority holdings; |
| (ii) | Shall have regard to the rights, privileges and limitations attached to the shares; |
| (iii) | Shall have regard to the following factors, in addition to any other factors which they believe should properly be taken into account, based on the best information available at the time: |
| (1) | If an offer has been made to acquire the at least 75% of the shares, the particulars of that offer; |
| (2) | The prospects of the company’s business, including, without limitation, taking into account the continuing association or involvement of any of the principals with the Company and its subsidiaries; |
| (3) | The value, at a specified capitalisation rate appropriate to the Company’s business, of the estimated future maintainable earnings of the company; |
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| (4) | The yield which an open-market investor would reasonably require in an acquisition of the shares; |
| (5) | The net tangible assets of the Company as disclosed in the accounts for the last preceding financial year or, if no accounts of the Company are available, as disclosed in the latest management accounts of the Company; |
| (6) | Such other matters as the expert considers necessary to arrive at a determination of fair value; and |
| (7) | In making their determination. |
| (c) | Cost of valuation |
| (i) | The expert's costs for determining the fair value will be paid by the transferor. |
| (ii) | If the transferor fails to pay the expert’s costs, any party to this agreement may pay such costs and recover the cost from the transferor. |
| 17. | Dividend Right |
| (a) | No dividend or distribution, whether in cash, in property, or in any other shares of the Company, shall be declared, paid, set aside or made with respect to other shareholders at any time unless a dividend or distribution is likewise declared, paid, set aside or made, pro rata on a fully diluted and as-converted basis at the same time with respect to PT. |
| 18. | Liquidation Right |
| (a) | In the event of any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, all assets and funds of the Company legally available for distribution to the shareholders (after satisfaction of all creditors’ claims and claims that may be preferred by law) shall be distributed to PT prior and in preference to any distribution of any of the assets or funds of the Company to other shareholders, the amount equal to, USD $ 2,901,671, plus an amount accruing thereon daily at a rate of 8% per annum, beginning on the date PT became the shareholder of the Company, plus all declared but unpaid dividends on shares held by PT. |
| (b) | Unless waived in writing by PT, a Deemed Liquidation Event shall be deemed to be a liquidation, dissolution or winding up of the Company for purposes of this clause 18, and any proceeds, whether in cash or properties, resulting from a Deemed Liquidation Event shall be distributed in accordance with the terms of this clause 18. |
| 19. | Anti – Dilution Right |
| (a) | Special Definitions |
For purposes of this clause 19, “New Securities” shall mean all ordinary shares (including reissued shares) issued or deemed to be issued by the Company after the date.
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| (b) | In the event that the Company shall issue any New Securities without consideration or at a subscription price per ordinary share (on a fully diluted and as-converted basis) (the “New Shares Issue Price”) less than any of the shares (the “PT Share Price”) held by PT (the “Target Shares”) in effect on the date of and immediately prior to such issuance, then the PT Share Price for such Target Shares shall forthwith be reduced, concurrently with such issuance of the New Securities, to a price equal to the New Shares Issue Price. The Company shall issue to PT certain number of same class of Target Shares (the “Additional Shares”) in accordance with the following formula: |
Additional Shares = I÷A-B, where:
I=the total investment amount of PT in the consideration of such Target Shares;
A= the New Shares Issue Price;
B= the number of Target Shares outstanding and held by PT immediately prior to such issuance of Additional Shares.
| (c) | Certificate as to Adjustments |
Upon the occurrence of each issuance pursuant to this clause 19, the Company at its expense shall promptly compute such issuance in accordance with the terms hereof and furnish to PT a new share certificate or other applicable documents to reflect such new issuance of Additional Shares.
| 20. | Most Favored Nation Treatment |
| (a) | In the event the Company or any of its Subsidiary grants, issues or provides any other investor, shareholder or person any right, privilege or term more favorable than those granted to PT Shareholders, then such rights, privileges and favorable terms shall automatically apply to the PT Shareholders. Each of the parties hereto agrees to execute and deliver any document required for reflecting and effectuating such automatic application pursuant to this clause 20. |
| 21. | Full Time, Non-Competition and Non-Solicitation Obligations of Key Employees |
| (a) | The Company shall cause each of the Key Employees (i.e. Wei Wei, Jiesi Zhang, Nolan Taing and Xiaodong Peng), to work for the Group on a full time basis. |
| (b) | The Company shall cause each of the Key Employees, Hui Ke Li and Xiaomin Wu, to agree and covenant, and Udesignlab Investments Pty Ltd (as the holding entity of Wei Wei), Peng Innovation Pty Ltd (as the holding entity of Xiaodong Peng), TALENTOP PTY LTD (as the holding entity of Hui Ke Li), Wew Group Pty Ltd (as the holding entity of Xiaomin Wu) and Wzw Pty. Ltd. (as the holding entity of Xiaomin Wu) hereby agree and covenant, to PT that from the date hereof until such person or its affiliates are no longer shareholders, directors, officers or employees of the Group and within two (2) full years afterwards (whichever is later), such person shall not, and shall cause his affiliates (including each of the management, directors and employees of such affiliates) not to, engage, either directly or indirectly, as a principal or for his or its own account or solely or jointly with others, or as shareholders in any corporation or joint stock association, or otherwise enjoy any economic interest or benefits, in any business that compete with the business currently and proposed to be conducted by the Group. |
| (c) | The Company shall cause each of the Key Employees, Hui Ke Li and Xiaomin Wu, to agree and covenant, and Udesignlab Investments Pty Ltd (as the holding entity of Wei Wei), Peng Innovation Pty Ltd (as the holding entity of Xiaodong Peng), TALENTOP PTY LTD (as the holding entity of Hui Ke Li), Wew Group Pty Ltd (as the holding entity of Xiaomin Wu) and Wzw Pty. Ltd. (as the holding entity of Xiaomin Wu) hereby agree and covenant, to PT that from the date hereof until such person or his affiliates are no longer shareholders, directors, officers or employees of the Group and within two (2) full years afterwards (whichever is later), such person shall not, and shall cause his affiliates (including each of the management, directors and employees of such affiliates) not to, directly or indirectly, as a principal or for its or his own account or solely or jointly with others, solicit, induce or hire, or enter into employment contract with any director, officer, employee or consultant of the Group or receive or accept the performance of services by any director, officer, employee or consultant of the Group. |
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| 22. | Competition restraint |
| (a) | Interpretation of this clause |
Clause (b) has effect as if it were separate clauses each one being severable from the others, such separate clause consisting of the covenant set out in subclause (b) combined with each separate period referred to in subclause (i) combined with each separate area referred to in subclause (ii) and if any of these separate clauses are invalid or unenforceable for any reason such invalidity or unenforceability will not affect the validity or enforceability of any other separate clause.
| (b) | Restraint |
Jiesi Zhang, Nolan Taing, Udesignlab Investments Pty Ltd (as the holding entity of Wei Wei), Peng Innovation Pty Ltd (as the holding entity of Xiaodong Peng), TALENTOP PTY LTD (as the holding entity of Hui Ke Li), Wew Group Pty Ltd (as the holding entity of Xiaomin Wu) and Wzw Pty. Ltd. (as the holding entity of Xiaomin Wu), each hereby covenants with the Company and each other shareholder, that it will not in its own right or as a shareholder (except as shareholder in a company the shares in which are quoted on an Australian Stock Exchange) or as an employee, be directly or indirectly involved in the supply of any products or services in competition with the company’s products and services, during the periods and in the areas specified in this clause.
| (i) | The periods specified are: |
| (1) | until no longer a shareholder; |
| (2) | until no longer a shareholder plus three (3) years; |
| (3) | until no longer a shareholder plus two (2) years; |
| (4) | until no longer a shareholder plus one (1) year; |
| (5) | until no longer a shareholder plus six (6) months. |
| (ii) | The areas specified are: |
| (1) | Australia |
| (2) | Victoria, New South Wales, Queensland, Western Australia; |
| (3) | Victoria, New South Wales and Queensland; |
| (4) | Victoria and New South Wales; and |
| (5) | Victoria |
| 23. | Dispute |
| (a) | Governing Law |
This Agreement shall be governed by and construed exclusively in accordance with the laws of Victoria, Australia without regard to principles of conflicts of law thereunder.
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| (b) | Negotiation Between Parties |
The parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of all parties within thirty (30) days, clause 22 (c) shall apply.
| (c) | Arbitration |
In the event the parties are unable to settle a dispute between them regarding this Agreement in accordance with subsection (b) above, such dispute shall be referred to and finally settled by arbitration at Hong Kong International Arbitration Centre (the “HKIAC”). The arbitration shall be conducted in accordance with the HKIAC’s arbitration rules as in effect at the time of submission to arbitration. The award of the arbitration tribunal shall be final and binding upon the parties, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.
| 24. | Covenant by the company |
The Company acknowledges the rights and obligations of the shareholders in this agreement. The company agrees for the benefit of the shareholders, that it will not record a change in membership, incur a liability, confer a benefit or do any act that is inconsistent with the rights and obligations of a shareholder provided for in this agreement.
| 25. | Confidentiality |
| (a) | Each shareholder severally agrees with each other shareholder, and the company, that all information in relation to: |
| (i) | The Company or any related body corporate (as defined in the Corporations Act) including trade secrets, operations know-how, any information concerning the organisation, management and finance of the other shareholder or the company, or any of its related bodies corporate, which is exchanged between them under this agreement, or acquired during the negotiations prior to the execution of this agreement, is confidential and must not be disclosed to any person not being a party to this agreement except: |
| (1) | To employees, legal advisers, auditors and other consultants requiring the information for the purposes of this agreement; or |
| (2) | With the consent of the party who supplied the information; or |
| (3) | If the information is prior to the execution of this agreement, lawfully in the possession of the recipient of the information through sources other than the party who supplied the information; or |
| (4) | If required by law or a stock exchange regulations; |
| (5) | If the information is or becomes generally and publicly available other than through the default of a party who divulges the information; or |
| (6) | To any prospective purchaser OR assignee of a share after such person has signed a confidentiality agreement acceptable to such shareholder. |
| (b) | The provisions of this clause continue in full force and effect for a period of two years after the termination of this agreement. |
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| 26. | Mutual covenants |
Each shareholder warrants to the other shareholders that:
| (a) | It has the capacity to enter into and to perform and complete its obligations under this agreement; |
| (b) | It has taken all necessary legal action to authorise the entry into and performance of this agreement and its obligations under this agreement; and |
| (c) | It will punctually discharge all its obligations under this agreement and the constitution. |
| 27. | Exclusion of implied relationships |
The shareholders agree that:
| (a) | Their rights, duties and obligations under this agreement are several and not joint, or joint and several; |
| (b) | Nothing in this agreement constitutes or may be construed as constituting any shareholder as the partner, agent, employee or representative of any other shareholder or the company; |
| (c) | No shareholder has power to incur obligations on behalf of, or pledge the credit of, the other shareholders in any way; |
| (d) | Except as provided in this agreement, no shareholder has authority to act for, or to create, and or assume any responsibility or obligation for the other shareholders; |
| (e) | Each shareholder agrees to indemnify the other shareholders and the Company from and against any and all losses and liabilities arising out of any breach of this agreement. |
| 28. | Term of agreement |
| (a) | Term |
This agreement continues in force and effect until:
| (i) | Terminated by written agreement between the shareholders and the company; or |
| (ii) | All of the shares are beneficially held by one party; or |
| (iii) | The liquidation of the Company. |
| (b) | Continuing rights |
Termination of this agreement does not extinguish, or otherwise affect, any rights of any party to this agreement against the other which:
| (i) | Accrued before the time at which this agreement terminated; or |
| (ii) | Otherwise relate to or may arise at any future time from any breach, or non-observance of obligations under this agreement, which arose before the time at which this agreement terminated. |
| (c) | Clauses of this agreement which are expressed to survive termination will do so. |
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| 29. | Notices |
A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
| (a) | Delivered personally; or |
| (b) | Posted to their address when it will be treated as having been received on the second business day after posting; or |
| (c) | Faxed to their facsimile number when it will be treated as received when it is transmitted; or |
| (d) | Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system. |
| 30. | Conflict with constitution |
If there is any conflict between a provision of this agreement and the constitution, the provision of this agreement will prevail and the shareholders will immediately take all steps necessary to procure the constitution to be amended in order to remove that conflict.
| 31. | Miscellaneous |
| (a) | Remedies |
Each party to this agreement acknowledges and agrees that if any of them breach the warranties, representations, indemnities, covenants, agreements, undertakings and obligations, for the purposes of this clause referred to as the agreed terms, on each of their parts contained in this agreement, damages may not be an adequate remedy and the agreed terms will be enforceable by injunction, order for specific performance or such other equitable relief as a court of competent jurisdiction may see fit.
| (b) | Waiver |
A waiver of a provision of, or right under, this agreement is effective only if it is in writing signed by the party granting the waiver.
| (c) | Invalidity |
Any provision of this agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction only, be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this agreement which are self-sustaining and capable of separate enforcement without regard to the read down, or severed provision in that jurisdiction, are and will continue to be valid and enforceable in accordance with their terms.
| (d) | Amendment |
This agreement may be amended only by an instrument in writing signed by all the parties to this agreement.
| (e) | Counterparts |
This agreement may be executed in any number of counterparts and all such counterparts taken together will be deemed to constitute one and the same instrument, and the date of the agreement will be the date on which it is executed by the last party.
| (f) | Assignment |
No shareholder may assign its rights or obligations under this agreement to any person, without the prior written consent of all the shareholders and the Company.
| (g) | Costs |
Each party to this agreement must bear its own costs of preparing and executing this agreement, and each shareholder must pay in their respective proportions all stamp duty on this agreement, and on any document executed to give effect to this agreement.
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| (h) | Entire agreement |
Without limiting clause 31(i) below, this agreement, together with any documents referred to in this agreement, or executed simultaneously in connection with this agreement, comprises the entire agreement between the parties with respect to the subject matter of this agreement and supersedes all prior understandings, agreements, representations and correspondence with respect to the same.
| (i) | Termination of Existing Shareholders Agreement |
| (a) | Each Shareholder (other than PT) and the Company agrees that the existing shareholders agreement dated 27 October 2022 and as amended on 1 September 2023 (Existing Shareholders Agreement) will terminate on the Effective Date. |
| (b) | Each Shareholder (other than PT) and the Company agrees that its rights, obligations and liabilities under the Existing Shareholders Agreement are extinguished and the Existing Shareholders Agreement has no force or effect on and from the Effective Date. |
| (c) | On and from the Effective Date, each Shareholder (other than PT) and the Company releases the member of the Group against any claim in respect of, arising out of, or in connection with the Existing Shareholders Agreement. |
| (j) | Further assurances |
Each party to this agreement will, at its own expense and without additional consideration, upon receipt of a request by another party promptly do such further acts and will execute, acknowledge, deliver and record such other documents and instruments as may be reasonably necessary, or desirable from time to time, to give full effect to this agreement and any transaction contemplated by this agreement.
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Execution page
SIGNED AS AN AGREEMENT
By the Company
| EXECUTED BY | WITENESSED BY |
ZIITECH PTY LTD ACN 635 021 779 in accordance with s 127 of the Corporation Act
| Director | Director/Secretary |
| Name: Wei Wei | Name: Xiaomin Wu |
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Execution page
SIGNED AS AN AGREEMENT
By the Shareholder
| EXECUTED BY | WITENESSED BY |
Pintec Technology Holdings Ltd
| Director | Director/Secretary |
| Name: Zexiong Huang | Name: Xiaofeng Cui |
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Execution page
SIGNED AS AN AGREEMENT
By the Shareholder
| EXECUTED BY | WITENESSED BY |
[*]
| Director | Director/Secretary |
| Name: | Name: |
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