7.2 The Purchaser undertakes in favour of the Vendor that the Purchaser and its officers, directors, employees, and agents will not offer, pay, promise to pay, or authorize the payment of, or give, promise to give, or authorize the giving of anything of value to any Government Official, or to any other person under circumstances where the Purchaser or its officers, directors, employees, or agents knew or had reason to know that all or a portion of such money or thing of value would be offered, promised, or given, directly or indirectly, to any Government Official, for the purpose of (i) influencing any act or decision of such Government Official in his or her official capacity; (ii) inducing such Government Official to do, or omit to do, any act in relation to his or her lawful duty; (iii) securing any improper advantage; or (iv) inducing such Government Official to influence or affect any act or decision of any Governmental Entity, in each case in order to assist the Purchaser or any of its officers, directors, employees, or agents in obtaining or retaining business for or with, or directing business to, any person.
7.3 Without the prior written consent of or otherwise agreed in writing to by the Vendor, and whether or not the Vendor is then a shareholder of the Purchaser or the Company and whether or not the Completion is consummated, the Purchaser shall not and shall cause its Affiliates and the Group Companies not to:
(a) use in advertising, publicity, announcements, or otherwise, the name of the Vendor or any Affiliate of the Vendor, either alone or in combination of, including “ 阿里巴巴 ” (Chinese equivalent for “Alibaba”), “ 淘宝 ” (Chinese equivalent for “Taobao”), “ 阿里 ” (Chinese equivalent for “Ali”), “ 全球速卖通 ” (Chinese brand for “AliExpress”), “ 淘 ” (Chinese equivalent for “Tao”), “ 天猫 ” (Chinese equivalent for “Tmall”), “ 聚划算 ” (Chinese equivalent for “Juhuasuan”), “ 飞猪 ” (Chinese equivalent for “Fliggy”), “ 阿里妈妈 ” (Chinese equivalent for “Alimama”), “ 阿里云 ” (Chinese equivalent for “Alibaba Cloud”), “ 口碑 ” (Chinese equivalent for “Koubei’), “ 虾米 ” (Chinese equivalent for “Xiami”), “ 蚂蚁金服 ” (Chinese brand for “Ant Financial”), “ 蚂蚁 ” (Chinese equivalent for “ Ant “), “ 蚂蚁财富 ” (Chinese equivalent for “Ant Fortune”), “ 支付宝 ” (Chinese brand for “Alipay”), “1688”, “ 一达通 ” (Chinese brand for “ OneTouch”), “ 友盟 ” (Chinese equivalent for “Umeng”), “ 盒马 ” (Chinese equivalent for “HeMa”), “ 闲鱼 ” (Chinese equivalent for “XianYu”), “ 优视 ” (Chinese equivalent for “ UC/UCWeb”), “ 高德地图 ” (Chinese brand for “AMAP”), “ 钉钉 ” (Chinese brand for “ DingTalk “), “ 余额宝 ” (Chinese equivalent for “Yu’e Bao”), “ 招财宝 ” (Chinese equivalent for “ Zhaocaibao “), “ 芝麻信用 ” (Chinese equivalent for “Zhima Credit”), “ 网商银行 ” (Chinese brand for “MYbank”), “ 阿里通信 ” (Chinese equivalent for “AliTelecom”), “ 优酷 ” (Chinese equivalent for “YOUKU”), “ 花呗 ” (Chinese equivalent for “HUABEI”), “ 借呗 ” (Chinese equivalent for “JIEBEI”), “Alibaba”, “Taobao”, “Ali”, “AliExpress”, “Tao”, “Tmall”, “Juhuasuan”, “Fliggy”, “Alimama”, “Alibaba Cloud”, “AliOS”, “Koubei”, “Xiami”, “Ant Financial”, “Ant”, “Ant Fortune”, “Alipay”, “OneTouch”, “Umeng”, “UCWeb”, “UC”, “AMAP”, “DingTalk”, “Yu’e Bao”, “Zhaocaibao”, “Zhima Credit”, “MYbank”, “AliTelecom”, “YOUKU”, “HUABEI”, “JIEBEI”, the associated devices and logos of the above brands (including but not limited to the smiling face device of Alibaba Group, the cow device of Alibaba.com, the Tao doll device of Taobao, the cat device of Tmall, the Ju doll device of Juhuasuan, the bracket device of Alibaba Cloud, the hippo device of HeMa, the fish device of XianYu, the pig device of Fliggy, the wing device of Dingtalk, the ant device of Ant Financial, the Zhi device of Alipay, the ingot device of Zhaocaibao, the sesame device of Zhima Credit together with the Gaoxiaode device and the paper aeroplane device of AutoNavi), or any company name, trade name, trademark, service mark, domain name, device, design, symbol or any abbreviation, contraction or simulation thereof owned or used by the Purchaser or any of its Affiliates; or
(b) represent, directly or indirectly, that any product or services provided by any Group Company or the Purchaser has been approved or endorsed by the Vendor or any of its Affiliates.
7.4 For the period of 18 months after the Completion Date, the Vendor shall not dispose of, nor enter into any agreement to dispose of or otherwise create any options, rights, interests or Encumbrances in respect of (the foregoing, each a “ Transfer ”), any of the Consideration Shares without the prior written consent of the Purchaser (such consent not to be unreasonably withheld), provided , however , that the Purchaser’s consent shall not be required if the transferee of such Transfer shall have delivered to the Purchaser a written undertaking to (i) bear a pro rata portion (based on the number of Consideration Shares so transferred) of the Vendor’s liability under this Agreement in respect of any breach by the Vendor of the Vendor Warranties, and (ii) be subject to the provisions of this clause 7.4 in respect of any subsequent Transfers by such transferee.
7.5 Without prejudice to clause 7.6, if the Merchant Assignment of any Existing Target Merchant has not been completed as of the Completion Date (such Target Merchant, the “ Non-assigned Target Merchant ”), the Vendor shall continue to use reasonable endeavours to complete such Merchant Assignment as soon as reasonably practicable. With respect to each of the Non-assigned Target Merchants, the Vendor shall, promptly after the Transition Period, pay or cause to be paid to the Purchaser an amount that equals fifty percent (50%) of the software service fees that the Tmall Entities actually receive (after all discounts, rebates and other incentives) from such Non-assigned Target Merchant in respect of the sale of Target Products by such Non-assigned Target Merchant on Tmall.com during the period (the “ Transition Period ”) commencing on the Completion Date and ending on the earliest of (i) completion of the Merchant Assignment of such Non-assigned Target Merchant, (ii) the termination or expiration of the Existing Target Merchant Contract, and (iii) December 31, 2018.
7.6 From and after Completion, the Vendor shall procure that the Tmall Entities use reasonable endeavours to prevent Target Merchants from selling any Target Product on Tmall.com unless such Target Merchant has entered into a Tripartite Agreement, and then only in accordance with the terms therein. Notwithstanding the foregoing, this clause 7.6 shall not apply to any sale of Target Products by any Target Merchant pursuant to any then-effective Existing Target Merchant Contract until the earlier of (i) the expiration of such Existing Target Merchant Contract in accordance with its terms and (ii) December 31, 2018. From and after the date hereof, the Vendor shall procure that the Tmall Entities do not, without the prior written consent of the Purchaser, renew or otherwise extend the term of any Existing Target Merchant Contract or enter into any similar new services agreements with any Target Merchant permitting the sale of any Target Products on Tmall.com.
8 WARRANTIES
8.1 The Vendor represents, warrants and undertakes to the Purchaser that the Vendor Warranties are true and accurate as of the date hereof and as of the Completion Date (following completion of the Business Restructuring and with reference to the facts and circumstances then existing), in each case subject to any matter which is fairly disclosed in writing delivered to the Purchaser prior to the date hereof and any matter expressly provided for under the terms of this Agreement. The Vendor acknowledges that the Purchaser has entered into this Agreement in reliance upon the Vendor Warranties.
8.2 The Purchaser represents, warrants and undertakes to the Vendor that the Purchaser Warranties are true and accurate as of the date hereof and as of the Completion Date (with reference to the facts and circumstances then existing), in each case subject to any matter which is fairly disclosed in writing delivered to the Vendor no later than the date hereof and any matter expressly provided for under the terms of this Agreement. The Purchaser acknowledges that the Vendor has entered into this Agreement in reliance upon the Purchaser Warranties.
8.3 Each of the Warranties shall be construed as a separate Warranty and (save as expressly provided to the contrary) shall not be limited or restricted by reference to or inference from the terms of any other Warranty or any other term of this Agreement.
8.4 The Vendor undertakes to notify the Purchaser in writing promptly if prior to Completion it becomes aware of any circumstance arising after the date of this Agreement which would cause any Vendor Warranty (if the Vendor Warranties were repeated with reference to the facts and circumstances then existing) to become untrue or inaccurate or misleading in any material respect.
8.5 The Purchaser undertakes to notify the Vendor in writing promptly if prior to Completion it becomes aware of any circumstance arising after the date of this Agreement which would cause any Purchaser Warranty (if the Purchaser Warranties were repeated with reference to the facts and circumstances then existing) to become untrue or inaccurate or misleading in any material respect.
9 LIMITATIONS ON CLAIMS
The Warranties are subject to the matters set out in Schedule 2 (Limitations on Claims).
10 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding among the Parties in connection with the sale and purchase of the Sale Shares. This Agreement supersedes all prior agreements or understandings in connection with the subject matter hereof which shall cease to have any further force or effect. No party has entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set out or referred to in this Agreement.
11 VARIATION
11.1 No variation of this Agreement (or of any of the legally binding agreements referred to in this Agreement) shall be valid unless it is in writing and signed by or on behalf of each of the Parties. The expression “ variation ” shall include any variation, supplement, deletion or replacement however effected.
11.2 Unless expressly agreed, no variation shall constitute a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations or liabilities under or pursuant to this Agreement which have already accrued up to the date of variation, and the rights and obligations of the Parties under or pursuant to this Agreement shall remain in full force and effect, except and only to the extent that they are so varied.
12 ASSIGNMENT
No Party shall be entitled to assign the benefit of any provision of this Agreement without the prior written approval of the other Party.
13 ANNOUNCEMENTS
13.1 Except as required by law or by any stock exchange or governmental or other regulatory or supervisory body or authority of competent jurisdiction to whose rules the Party making the announcement or disclosure is subject, whether or not having the force of law, no announcement or circular or disclosure in connection with the existence or subject matter of this Agreement shall be made or issued by or on behalf of the Vendor or any member of the Group or any of them without the prior written approval of the Purchaser (such approval not to be unreasonably withheld or delayed), or by or on behalf of the Purchaser without the prior written approval of the Vendor (such approval not to be unreasonably withheld or delayed).
13.2 Where any announcement or disclosure is made in reliance on the exception in clause 13.1, the Party making the announcement or disclosure will so far as practicable consult with the other Parties in advance as to the form, content and timing of the announcement or disclosure.
14 FEES AND EXPENSES
Each of the Parties shall bear its own fees and expenses incurred in connection with the negotiation, preparation and completion of this Agreement. Each of the Parties shall bear and pay any tax of any nature as required by any applicable Law (including, without limitation, Bulletin 7 required to be paid by the Parties in connection with the transactions contemplated by this Agreement).
15 CONFIDENTIALITY
15.1 Each Party undertakes that it shall (and shall procure that its Affiliates shall, and where relevant, undertakes to procure that its officers, employees, agents, investment managers and professional and other advisers and those of any Affiliate (together its “ Authorised Persons ”) shall) use its best endeavours to keep confidential at all times and not permit or cause the disclosure of any information (other than to its Authorised Persons) which it may have or acquire before or after the date of this Agreement relating to the provisions of, and negotiations leading to, this Agreement and the performance of the obligations thereunder (such information being “ Confidential Information ”). In performing its obligations under this clause 15.1, each Party shall apply confidentiality standards and procedures at least as
stringent as those it applies generally in relation to its own confidential information.
15.2 Each Party shall use its reasonable endeavours to alert the other Party as soon as is reasonably practical after it becomes aware of any request from a third party for disclosure of any Confidential Information.
15.3 The obligation of confidentiality under clause 15.1 does not apply to:
(a) information which at the date of disclosure is within the public domain (otherwise than as a result of a breach of this clause 15);
(b) the disclosure of information to the extent required to be disclosed by law, regulation or any court, tribunal or regulatory authority; or
(c) any announcement made in accordance with the terms of clause 13.
16 SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement. The Parties shall then use all reasonable endeavours to replace the invalid or unenforceable provisions by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
17 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts, each of which is an original but all of which together constitute one and the same instrument.
18 WAIVER
18.1 No failure or delay by any Party in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy.
18.2 The rights and remedies of the Parties under or pursuant to this Agreement are cumulative, may be exercised as often as such Party considers appropriate and are in addition to its rights and remedies under general law.
19 FURTHER ASSURANCE
Each of the Parties agrees to perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as the other Parties may reasonably require, whether on or after Completion, to implement and/or give effect to this Agreement and the transaction contemplated by it and for the purpose of vesting in the relevant Parties the full benefit of the assets, rights and benefits to be transferred to such Parties under this Agreement.
20 NOTICES
20.1 All notices, requests and other communications to any Party hereunder shall be in writing (including facsimile transmission and electronic mail (“ e-mail ”) transmission, so long as a receipt of such e-mail is requested and received) and shall be given,
if to Purchaser, to:
ALIBABA HEALTH INFORMATION TECHNOLOGY LIMITED
26/F Tower One, Times Square, 1 Matheson Street
Causeway Bay, Hong Kong
Attention: General Counsel
Facsimile No.:
E-mail:
With a copy to (which shall not constitute notice):
Freshfields Bruckhaus Deringer
55 th Floor, One Island East, Taikoo Place, Quarry Bay, Hong Kong
Attention: Edward Freeman
E-mail:
if to the Vendor, to:
ALI JK NUTRITIONAL PRODUCTS HOLDING LIMITED
c/o Alibaba Group Services Limited
26th Floor, Tower One, Times Square, 1 Matheson Street
Causeway Bay, Hong Kong S.A.R.
Attention: General Counsel
E-mail:
With a copy to (which shall not constitute notice):
Reed Smith Richards Butler
20th Floor, Alexandra House,
18 Chater Road,
Central Hong Kong
Attention: Denise Jong/ Anthony Woo
E-mail:
or such other address or facsimile number as such Party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. local time in the place of receipt and such day is a Business Day in the place of receipt, except with respect to any e-mail that is acknowledged as received on such day. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.
20.2 A Party may notify any other Party to this Agreement of a change to its name, relevant addressee, address, fax number or email address for the purposes of this clause 20, provided that, such notice shall only be effective on:
(a) the date specified in the notice as the date on which the change is to take place, or
(b) if no date is specified or the date specified is less than five Business Days after the date on which notice is given, the date following five Business Days after notice of any change has been given.
21 GOVERNING LAW AND JURISDICTION
21.1 This Agreement and the relationship among the Parties shall be governed by, and interpreted in accordance with, the laws of Hong Kong.
21.2 Any dispute arising out of or in connection with this Agreement shall be settled by arbitration in Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the notice of arbitration is submitted in accordance with these Rules. The dispute shall be resolved by one arbitrator appointed by the Parties. If the Parties cannot agree on one arbitrator, the dispute shall be resolved by three arbitrators, one appointed by the Purchaser, one appointed by the Vendor and the third appointed by the first two arbitrators. The arbitration proceedings shall be conducted in English. Any award is final and may be enforced in any court of competent jurisdiction. The award shall apportion the costs of arbitration. The Parties shall duly and punctually perform their obligations hereunder pending issuance of the arbitral award. Nothing contained herein shall preclude any Party from seeking provisional, interim or conservatory measures (including injunctive relief) from any court of competent jurisdiction. The Parties agree that any decision of the arbitral tribunal shall be final and binding on the Parties and shall be non-appealable to a court of law.
21.3 The terms of this Agreement are intended solely for the benefit of each Party to this Agreement and their respective successors or permitted assigns. Except as otherwise expressly stated in this Agreement, no one other than a party to this Agreement may enforce any of its terms under the Contracts (Rights of Third Parties) Ordinance, Cap. 623 of the Laws of Hong Kong. Where any clause of this Agreement entitles any third party to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Ordinance, the parties to this Agreement reserve the right to vary that term or any other term of this Agreement without the consent of that third party.
AS WITNESS this Agreement has been signed on behalf of the Parties the day and year first before written.
Signature Page follows
IN WITNESS WHEREOF, the Parties through their authorized representatives have executed this Deed of Non-competition as of the date first above written.
)
and SIGNED for and on behalf of
)
Alibaba Group Holding Limited
)
By:
in the presence of:
)
Name:
)
Title:
Witness:
Name:
Signature page to deed of non-competition of Alibaba Group Holding Limited
)
and SIGNED for and on behalf of
)
Alibaba Health Information
)
By:
Technology Limited
)
Name:
in the presence of:
)
Title:
)
Witness:
Name:
Signature page to deed of non-competition of Alibaba Health Information Technology Limited
IN WITNESS WHEREOF , the Parties through their authorized representatives have executed this Share Purchase Agreement as of the date first above written.
Signed
)
for and on behalf of
)
ALIBABA HEALTH INFORMATION
)
By:
/s/ Nicole Lew
TECHNOLOGY LIMITED
)
Name: Nicole Lew
Title: Company Secretary and General Counsel
Signature page to share purchase agreement of Alibaba Health Information Technology Limited
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