Exhibit 2.1
SECOND AMENDMENT AND JOINDER TO
AGREEMENT AND PLAN OF MERGER, CONVERSION AND SHARE
EXCHANGE
This SECOND AMENDMENT
AND JOINDER TO AGREEMENT AND PLAN OF MERGER, CONVERSION AND SHARE
EXCHANGE (“ Amendment ”) effective
this 8 th day of September, 2009 is by and
among Ideation Acquisition Corp., a corporation incorporated in the
State of Delaware, USA (“ Ideation ”), ID
Arizona Corp., a corporation incorporated in the State of Arizona,
USA, Earl Yen (the “ CSV Representative
”), Tommy Cheung and Stephen Lau (collectively, the “
DB Representative ”), Qinying Liu (the “
Management Shareholder Representative ” and,
together with the CSV Representative and the DB Representative, the
“ SM Shareholders’ Representatives
”), Linden Ventures II (BVI), Ltd. (“
Linden ”), Vervain Equity Investment Limited
(the “ Gentfull Transferee ”), Sun Hing
Associates Ltd. (the “ Gavast Transferee
”, and, together with the Gentfull Transferee, the “
Transferees ”) and The Frost Group, LLC (the
“ Sponsor Entity ”).
Recitals
WHEREAS,
Ideation, the SM
Shareholders’ Representatives and Linden, along with the
other parties thereto, have previously entered into that certain
Agreement and Plan of Merger, Conversion and Share Exchange dated
as of March 31, 2009, including the exhibits and schedules
thereto (as amended, the “ SEA
”);
WHEREAS
, Gentfull Investment
Limited (“ Gentfull ”) desires to
transfer all right, title and interest in and to the 5,454,543
Series C preferred shares, par value US$0.0001 per share, in
the capital of the Company (“ Series C
Shares ”) held by it to the Gentfull Transferee (an
Affiliate of Gentfull), and Gavast Estates Limited (“
Gavast ”) desires to transfer all right, title
and interest in and to the 12,727,272 Series C Shares held by
it to the Gavast Transferee (an Affiliate of Gavast) (together, the
“ Transfers ”), and such transferees wish
to join as parties to the SEA;
WHEREAS
, the parties to the
SEA also desire to make certain amendments to the SEA as set forth
herein; and
WHEREAS
, (i) in
accordance with Section 16.2 of the SEA, Ideation, a majority
of the SM Shareholders’ Representatives and Linden wish to
amend the SEA to reflect the terms set forth below and
(ii) the Gavast Transferee and the Gentfull Transferee wish to
become bound by the SEA as SM Shareholders, in the place of Gavast
and Gentfull, respectively. Agreement
NOW,
THEREFORE, in
consideration of the premises, the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. As of the date
hereof, being the effective date of the Transfers (the “
Effective Date ”), the Gentfull Transferee
shall be substituted for and shall replace Gentfull as a party to
the in the SEA that by their terms can only be made by the
Transferees on the Effective Date, which representations and
warranties shall be deemed to be made, for purposes of the SEA, as
of the Effective Date; provided that (x) the Gentfull
Transferee shall be responsible for any breach by Gentfull prior to
the Effective Date of any such representations and warranties made
by Gentfull and (y) the Gavast Transferee shall be responsible
for any breach prior to the Effective Date of any such
representations and warranties made by Gavast).
2. Section 4.5
of the SEA is hereby amended and restated in its entirety to read
as follows:
“ Issuance of New
Warrants . Immediately following the Conversion
Effective Time, New Warrants shall be issued to the holders of
Acquired Shares and Sponsor Warrant Holders in accordance with
Section 12.12 hereof, if applicable.”
3. Section 5.1(c)(ii) of
the SEA is hereby amended and restated in its entirety to read as
follows:
“(ii) In all other regards,
the terms of each New Restricted Shares Award shall be the same as
the SM Restricted Shares Award which it replaces, and the Option
Plan under which such SM Restricted
1
Shares Award was initially granted
as in effect immediately prior to the Closing shall continue to
apply in all material respects to the New Restricted Shares Award,
including all restrictions or limitations on transfer and vesting,
to the extent that such restrictions or limitations shall not have
already lapsed, after giving effect to the Closing; provided
that the holder of any ID Cayman Shares delivered upon the vesting
of a New Restricted Shares Award prior to the one (1) year
anniversary of the Closing shall be subject to the restrictions set
forth in Clauses 2 and 3 of the form of Lock-Up Agreement
attached hereto as Exhibit F-2 with respect to such shares
until the one (1) year anniversary of the
Closing.”
4. Section 5.1(d)(ii) of
the SEA is hereby amended and restated in its entirety to read as
follows:
“(ii) In all other regards,
the terms of each New Option shall be the same as the SM Option
which it replaces, and the Option Plan under which such SM Option
was initially granted as in effect immediately prior to the Closing
shall continue to apply in all material respects to the New
Options, including all restrictions or limitations on transfer and
vesting, to the extent that such restrictions or limitations shall
not have already lapsed, after giving effect to the Closing;
provided that the holder of any ID Cayman Shares delivered
upon the exercise of a New Option prior to the one (1) year
anniversary of the Closing shall be subject to the restrictions set
forth in Clauses 2 and 3 of the form of Lock-Up Agreement
attached hereto as Exhibit F-2 with respect to such shares
until the one (1) year anniversary of the
Closing.”
5. Section 5.1(e) of the
SEA is hereby amended and restated in its entirety to read as
follows:
“ Interim Notes
. Upon the Closing, the principal amount outstanding
under each Interim Note as of the Closing and US$10,000,000 of the
principal amount outstanding under the Linden Note as of the
Closing shall be converted into (a) a number of ID Cayman
Shares calculated by dividing such outstanding principal amount by
US$7.8815, rounded up to the nearest whole share (the
“Note Shares” ), plus (b) a number
of New Warrants equal to the number of such Note Shares issued,
with each such New Warrant representing the right to purchase 0.25
of an ID Cayman Share at an exercise price per whole share of
$7.8815. The aggregate number of shares underlying such New
Warrants shall be rounded up to the nearest whole share. At the
Closing, (x) US$5,000,000 of the principal amount outstanding
under the Linden Note plus all accrued and unpaid interest on the
Linden Note, plus US$20,000 as reimbursement for Linden
Ventures’ legal expenses, shall be paid in cash to Linden
Ventures and (y) all accrued and unpaid interest under the
Interim Notes shall be paid in cash to the holders
thereof.”
6. Section 5.3(a) of the
SEA is hereby amended by adding the following sentence at the end
of such Section:
“The holder of such ID Cayman
Shares shall be subject to the restrictions set forth in
Clauses 2 and 3 of the form of Lock-Up Agreement attached
hereto as Exhibit F-2 with respect to such shares until the
one (1) year anniversary of the Closing.”
7. Section 5.3(b) of the
SEA is hereby amended by adding the following sentence at the end
of such Section:
“The holder of such ID Cayman
Shares shall be subject to the restrictions set forth in
Clauses 2 and 3 of the form of Lock-Up Agreement attached
hereto as Exhibit F-2 with respect to such shares until the
one (1) year anniversary of the Closing.”
8. Section 9.5
of the SEA is hereby amended and restated in its entirety to read
as follows:
“Section 9.5 Other
Pre-Closing Covenants. Prior to the Closing,
(i) each of the SM Entities agrees that it shall, and each of
the SM Shareholders agrees that it shall use commercially
reasonable efforts (which, with respect to the SM Institutional
Shareholders, shall only mean the directing of such SM
Institutional Shareholder’s nominee(s) on the board of
directors of SM Cayman to vote against any action in contravention
of this Section 9.5) to, cause the relevant Group Companies to
complete the actions set forth in items 2, 3 and 4 of
Schedule 9.5, (ii) Ms. Liu and Ms. Yang shall
use commercially reasonable efforts to complete the actions set
forth in item 1 of Schedule 9.5, and (iii) all
amounts owing by Ms. Liu and Ms. Yang to SM Cayman shall
have been
2
repaid in accordance with the terms
of that certain Repayment Agreement dated as of June 23, 2009
among SM Cayman, Ms. Liu and Ms. Yang.”
9. Section 12.4 of the SEA
is hereby amended and restated in its entirety to read as
follows:
“ Board Composition.
Ideation shall take such action, including amending its
bylaws, as may be required to cause the number of directors
constituting the Combined Board immediately after the Closing to
consist of ten (10) persons, for a period commencing on the
Closing Date and ending not sooner than the third anniversary of
the Closing Date. Ideation shall have received the resignation of a
sufficient number of current directors (which resignation may be
conditioned upon the Closing of the Share Exchange) to allow for
the election of the Director Nominees pursuant to this Section, and
the remaining members of the Ideation Board shall have elected the
other Director Nominees (as hereafter defined) as members of the
Combined Board, effective upon the Closing, to fill the vacancies
created by such increase in the size of the board and such
resignations. Each Director Nominee shall serve as a director for a
term expiring at ID Cayman’s next annual meeting of
stockholders following the Closing Date and until his or her
successor is elected and qualified. “ Director
Nominees ” means (i) five (5) persons
nominated by the Ideation Representative (at least three
(3) of whom shall be “independent directors” as
such term is defined in the rules and regulations of AMEX (“
Independent Directors ”) and at least two
(2) of whom must be non-U.S. citizens) and (ii) five
(5) persons nominated by the SM Shareholders’
Representatives (two (2) of whom shall be Qinying Liu and Earl
Yen, at least three (3) of whom shall be Independent
Directors, and at least three (3) of whom shall be
non-U.S. citizens).”
10. Section 12.9 of the
SEA is hereby amended and restated in its entirety to read as
follows:
“ Series D or Other
Financing . Notwithstanding anything to the contrary
set forth herein, from the date hereof until the date the Proxy
Statement/Prospectus is declared effective by the SEC, SM Cayman
shall be permitted to raise capital pursuant to an issuance of
Series D Preferred Shares, on the terms and conditions agreed
upon by Ideation and SM Cayman, provided that such financing
results in maximum aggregate proceeds to the borrower of
US$15 million and no dividends shall accrue on such shares
until the end of the first full calendar quarter after the Closing
or termination hereof (a “ Series D
Financing ”). The terms of any such Series D
Preferred Shares must provide for their automatic conversion at the
Closing into (a) a number of ID Cayman Shares calculated by
using a ratio of one (1) ID Cayman Share per each US$7.8815 of
aggregate liquidation preference thereunder, rounded up to the
nearest whole share, plus (b) a number of New Warrants equal
to the number of ID Cayman Shares issued pursuant to
clause (a) above, with each such New Warrant representing the
right to purchase 0.25 of an ID Cayman Share at an exercise price
per whole share of $7.8815. The aggregate number of shares
underlying such New Warrants shall be rounded up to the nearest
whole share. Notwithstanding anything to the contrary set forth in
this Agreement, SM Cayman shall also be permitted to discuss with
potential lenders the terms of a subordinated debt financing,
provided that the consent of Ideation shall be required prior to SM
Cayman entering into any agreement or commitment with respect to
such financing.”
11. Section 12.10(a) of
the SEA is hereby amended and restated in its entirety to read as
follows:
“ Sponsor Purchases.
Following the initial filing of the Proxy
Statement/Prospectus with the SEC and continuing until no later
than 4:30 pm Eastern time on the day that is two (2) business
days before the day of the Stockholders Meeting (the
“Reference Date”), The Frost Group, LLC (the “
Sponsor Entity ”), through itself, its
Affiliates or other Persons (each such other Person, a “
Non-Affiliate Purchaser ”), agrees to purchase
and/or enter into binding contracts to purchase (the “
Sponsor Purchases ”) Ideation Shares in the
open market or in privately negotiated transactions (the “
Acquired Shares ”), in such an amount (the
“ Sponsor Purchase Commitment Amount ”)
equal to the lesser of (i) an aggregate expenditure of
US$18.25 million and (ii) an amount that, when combined
with purchases by Ideation pursuant to Section 12.11, Warrant
Purchases (as defined below) and proxies delivered by Ideation
stockholders not electing Conversion Rights, would result in ID
Cayman possessing (assuming settlement of such Section 12.11
purchases and Warrant Purchases) in the aggregate no less than
US$18.25 million in its Trust Account (or other
accounts)
3
immediately after the Closing,
before payment of the expenses set forth in clauses (b)
through (e) of Section 8.19 (or any obligations incurred
by any SM Party that may become obligations of ID Cayman as a
result of the Closing), provided, however, that (w) the
purchase price per Ideation Share is not more than $9.00;
(x) the Sponsor Purchase Commitment Amount is used solely to
purchase Ideation Shares and is not applied to any transaction cost
related to such purchase, other than normal brokerage fees;
(y) such Sponsor Purchases are conducted in compliance with
the Securities Act, the Exchange Act and any other applicable Legal
Requirements; and (z) the aggregate amount of such Sponsor
Purchases shall be disclosed to the holders of Ideation Shares in
an appropriate filing with the SEC one (1) business day before
the Stockholders Meeting. To the extent that the Sponsor Entity,
through itself, its Affiliates or Non-Affiliate Purchasers has not
otherwise satisfied the Sponsor Purchase Commitment Amount on or
prior to the Reference Date, the Sponsor Entity, through itself,
its Affiliates or Non-Affiliate Purchasers may satisfy its
obligations pursuant to this Section prior to the Closing by
delivering into an escrow account irrevocable written notices to
exercise all or any of their respective Ideation Warrants that are
“Public Warrants” (as defined in the Warrant Agreement
related thereto) to be effective immediately after the Closing
(each, a “Warrant Purchase”), together with the cash
exercise price for the shares to be issued pursuant to such
Ideation Warrants in an amount up to the difference between the
dollar amount of Sponsor Purchases and the Sponsor Purchase
Commitment Amount. The escrow account shall be established with an
escrow agent and on terms and conditions mutually agreeable to
Ideation and the SM Shareholders’ Representatives, provided
that the cash exercise price so delivered shall be released to ID
Cayman upon written notice from the SM Shareholders’
Representatives following the Closing, at which time the shares
underlying such warrants (the “Warrant
Shares” ) shall be issued to the Persons who have so
elected such exercise (each, a “Sponsor Warrant
Holder” ). Alternatively, to the extent that the
Sponsor Entity, through itself, its Affiliates or Non-Affiliate
Purchasers, is unable to make sufficient Sponsor Purchases of
Acquired Shares or Warrant Purchases to satisfy the Sponsor
Purchase Commitment Amount for any reason, Ideation agrees to sell
shares of Ideation Common Stock (which shall also be deemed to be
“Acquired Shares” for purposes of this
Article XII) to the Sponsor Entity, its Affiliates or
Non-Affiliate Purchasers for a price per share equal to $7.8815 in
such number as necessary to remedy such shortfall, and the Sponsor
Entity shall not be in breach of this section to the extent it so
remedies such shortfall pursuant to such purchases within ten
(10) business days after the Closing. Such purchases shall be
made pursuant to a purchase agreement in reasonable and customary
form and substance for a transaction of such nature, which shall
include customary registration rights with respect to the shares
acquired, which rights shall be pari passu with other registration
rights granted to holders of ID Cayman Securities. The Sponsor
Entity agrees to promptly provide reasonable supporting evidence of
its compliance with the provisions of this Article XII, upon
request by an SM Shareholders’
Representative.”
12. Section 12.12 of the
SEA is hereby amended and restated in its entirety to read as
follows:
“ ID Cayman New
Warrants . Immediately prior to the Closing of the
Share Exchange, each holder of Acquired Shares and each Sponsor
Warrant Holder shall be issued a New Warrant to purchase 0.25 of an
ID Cayman Share for each Acquired Share held by him or it or
Warrant Share that will be issued to him or it immediately after
the Closing pursuant to Section 12.10(a). The exercise price
per whole ID Cayman Share of such New Warrants shall be US$7.8815,
and the aggregate number of shares underlying such New Warrants
shall be rounded up to the nearest whole share. Such issuance shall
be conditioned upon the execution and delivery by the holder of
such an Acquired Share or Sponsor Warrant Holder of a purchase
agreement in reasonable and customary form and substance for a
transaction of such nature, which shall include customary
registration rights with respect to the ID Cayman Shares underlying
such New Warrants, which rights shall be pari passu with other
registration rights granted to holders of ID Cayman Securities.
Each holder of Acquired Shares and each Sponsor Warrant Holder
shall be a third-party beneficiary to this provision for so long as
he or it holds any Acquired Shares or is in escrow pursuant to
Section 12.10 (a) with respect to any Warrant
Shares.”
4
13. Section 13.1(e) of the
SEA is hereby amended and restated in its entirety to read as
follows:
“Approval by Ideation’s
Stockholders. The Transactions shall
have been approved by the holders of Common Stock in accordance
with applicable Legal Requirements.”
14. The following
Section 13.1(r) is hereby added to the SEA:
“ Approval of Charter
Amendments . An amendment to the Amended and
Restated Certificate of Incorporation of Ideation in substantially
the form and substance attached hereto as Exhibit I
(the “Ideation Charter Amendment” ) shall
have been approved by the holders of Common Stock and filed with
the Secretary of State of the State of Delaware in accordance with
applicable Legal Requirements. If the Ideation Charter Amendment
shall have been approved and become effective pursuant to this
subsection, the board of directors and sole stockholder of ID
Arizona shall have adopted corresponding changes to its Articles of
Incorporation and filed the same with the Arizona Corporation
Commission (the “Arizona Charter
Amendment” ).”
15. Section 13.2(d) of the
SEA is hereby amended and restated in its entirety to read as
follows:
“Approval by Ideation’s
Stockholders. The Transactions shall
have been approved by the holders of Common Stock in accordance
with applicable Legal Requirements.”
16. The following
Section 13.2(p) is hereby added to the SEA:
“ Approval of Charter
Amendments . The Ideation Charter Amendment shall
have been approved by the holders of Common Stock and filed with
the Secretary of State of the State of Delaware in accordance with
applicable Legal Requirements. If the Ideation Charter Amendment
shall have been approved and become effective pursuant to this
subsection, the Arizona Charter Amendment shall have been approved
by its board of directors and sole stockholder and been filed with
the Arizona Corporation Commission.”
17. Section 15.1(b) of the
SEA is hereby amended and restated in its entirety to read as
follows:
“by either Ideation or the SM
Shareholders’ Representatives (in accordance with
Section 16.5), if the Closing has not occurred by the later of
(i) October 30, 2009 or (ii) such other date that
has been agreed in writing by the SM Shareholders’
Representatives and Ideation (the “ End Date
”); provided, however , that the right to terminate
this Agreement under this Section 15.1(b) shall not be
available to any Party whose failure to comply with any provision
of this Agreement has been the cause of, or resulted in, the
failure of the Closing Date to occur on or before such
date.”
18. The definition
of “Adjusted Net Income” set forth in Annex A of
the SEA is hereby amended to delete clause (iv) set forth
therein. The numbering of the remaining clauses in such definition
shall remain unchanged, and clause (iv) shall be deemed to
read “intentionally omitted.”
19. Clause (vi) of the
definition of “Adjusted Net Income” set forth in Annex
A of the SEA is hereby amended and restated in its entirety to read
as follows:
‘‘(vi) any costs,
expenses or other items relating or attributable to that certain
Convertible Note and Warrant Agreement (the “Note
Agreement”), dated as of March 17, 2008, among SM
Cayman, Linden Ventures and the other parties thereto, as amended
on September 15, 2008, December 18, 2008, March 12,
2009 and August 21, 2009 (including the issuance of the Linden
Note (as defined in the Note Agreement), as amended on
September 15, 2008, December 18, 2008, March 12,
2009 and August 21, 2009)”
20. The definition
of “ID Cayman Preferred Shares” as set forth in
Annex A to the SEA is hereby deleted.
21. Schedule B
to the SEA is hereby amended and restated in its entirety to read
as set forth in Schedule 1 to this Amendment.
22. Schedule C
to the SEA is hereby amended and restated in its entirety to read
as set forth in Schedule 2 to this Amendment.
5
23. The Memorandum
and Articles of Association of ID Cayman following the Closing, as
set forth in Exhibit A to the SEA, are hereby amended
and restated in their entireties as set forth in
Exhibit 1 to this Amendment.
24. A new
Exhibit I is hereby added to the SEA in the form
attached hereto as Exhibit 2 .
25. Except as
amended by the terms of this Amendment, the SEA remains in full
force and effect.
26. Unless
otherwise defined, capitalized terms used herein have the meanings
given to them in the SEA.
[Signature
Page Follows]
6
IN WITNESS
WHEREOF , the
parties have executed this Amendment as of the date and year first
set forth above.
IDEATION ACQUISITION
CORP.
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Address:
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1990 S. Bundy Drive,
Suite 620
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Facsimile:
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(310) 861-5454
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Address:
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1990 S. Bundy Drive,
Suite 620
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Facsimile:
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(310) 861-5454
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MANAGEMENT SHAREHOLDER
REPRESENTATIVE:
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Address:
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Room 4B, Yinglong
Building
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No. 1358 Yan An Road
West
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Facsimile:
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+86
(21) 6283-0552
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7
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Address:
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Rm.
104, Bldg.18
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Facsimile:
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+86
(21) 6225-8573
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Address:
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56/F, Cheung Kong Center
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Facsimile:
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+852 2203-8304
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Address:
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56/F, Cheung Kong Center
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Facsimile:
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+852 2203-8304
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LINDEN VENTURES II (BVI),
LTD.
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Title: Authorized
Signatory
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Address:
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c/o Linden Advisors
LP,
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590 Madison Ave., 15th Floor, New
York, NY 10022, USA
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Facsimile:
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+1
(646) 840-3625
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8
SUN HING ASSOCIATES LTD. for and on
behalf of Sun Hing Associates Limited
Name: Yuen Yui
Wing Authorized
Signature(s)
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Address: 9/F Central Building,
3 Pedder Street, Central, Hong Kong
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VERVAIN EQUITY INVESTMENT LIMITED
for and on behalf of Vervain Equity Investment
Limited
Name: Karen Cheung and Peh
Jefferson Tun
Lu Authorized
Signature(s)
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Address: 9/F Central Building,
3 Pedder Street, Central, Hong Kong
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9
Schedule 1
SCHEDULE B
SM Share Ownership*
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Number of
SM
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Percentage
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Shares
Held**
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Ownership
Interest
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32,727,272
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32.2
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%
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20,623,779
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20.3
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%
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14,660,750
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***
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14.4
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%
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14,660,750
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***
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14.4
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%
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12,727,272
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12.5
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%
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Vervain Equity
Investment
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5,454,543
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5.4
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%
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100,854,366
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99.2
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%
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798,000
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0.8
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%
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101,652,366
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100.0
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%
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*
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Does not reflect outstanding options
issued under the ESOP.
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**
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Reflects the number of SM Ordinary
Shares held by each SM Shareholder after giving effect to the
Preferred Conversion.
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***
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Subject to reduction for any share
repurchases by SM Cayman pursuant to that certain Repayment
Agreement dated as of June 23, 2009 among SM Cayman, Qinying
Liu and Le Yang.
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(1)
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Non-signing shareholder.
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SM Warrant Ownership
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Number of
SM
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Shares
Underlying
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Warrants
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12,670,568
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5,875,639
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3,782,000
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33,142
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33,142
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33,142
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33,142
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33,142
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22,493,917
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10
Schedule 2
SCHEDULE C
Share Allocation —
Shareholders
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Initial
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Earn-out
Shares
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Share
Payment
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Percentage
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|
|
|
|
|
|
|
|
2,210,316
|
|
|
|
26.36
|
%
|
|
|
|
|
1,392,877
|
|
|
|
16.61
|
%
|
|
|
|
|
990,149
|
*
|
|
|
11.81
|
%
|
|
|
|
|
990,149
|
*
|
|
|
11.81
|
%
|
|
|
|
|
859,567
|
|
|
|
10.25
|
%
|
Vervain Equity
Investment
|
|
|
368,386
|
|
|
|
4.39
|
%
|
|
|
|
|
6,811,444
|
|
|
|
81.23
|
%
|
|
|
|
|
53,895
|
|
|
|
0.64
|
%
|
|
|
|
|
6,865,339
|
|
|
|
81.87
|
%
|
|
|
|
|
*
|
|
Subject to reduction for any share
repurchases by SM Cayman pursuant to that certain Repayment
Agreement dated as of June 23, 2009 among SM Cayman, Qinying
Liu and Le Yang. Any such reduction shall be calculated by
subtracting (i) the number of SM Cayman ordinary shares so
repurchased multiplied by 0.0675374 from (ii) the number of ID
Cayman shares set forth on this Schedule next to such
person’s name.
|
Share Allocation —
Warrantholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
ID
|
|
|
|
|
|
|
|
|
|
|
Cayman
Shares
|
|
|
|
|
|
|
|
|
|
|
Underlying
|
|
|
Exercise
|
|
|
Earn-out
Shares
|
|
|
|
|
Warrants
|
|
|
Price
|
|
|
Percentage
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
China Seed Ventures —
Series A
|
|
|
675,374
|
|
|
$
|
1.48
|
|
|
|
8.06
|
%
|
China Seed Ventures —
Series B
|
|
|
33,769
|
|
|
$
|
8.14
|
|
|
|
0.40
|
%
|
China Seed Ventures —
Series C
|
|
|
79,443
|
|
|
$
|
6.51
|
|
|
|
0.95
|
%
|
China Seed Ventures — DB
Transferred
|
|
|
67,152
|
|
|
$
|
0.0001
|
|
|
|
0.80
|
%
|
|
|
|
|
396,826
|
|
|
$
|
6.30
|
|
|
|
4.73
|
%
|
|
|
|
|
255,427
|
|
|
$
|
8.14
|
|
|
|
3.05
|
%
|
|
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
|
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
|
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
|
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
|
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
|
|
|
|
1,519,186
|
|
|
|
|
|
|
|
18.14
|
%
|
|
|
|
|
(1)
|
|
Non-signing shareholder.
|
11
Exhibit 1
EXHIBIT A
Memorandum and Articles of
Association of ID Cayman
12
Company No:
[ ]
MEMORANDUM AND ARTICLES OF
ASSOCIATION
OF
SEARCHMEDIA HOLDINGS LIMITED
(adopted on [•], 2009 by a
special resolution of the members)
Registered on the
[ ] day
of [ ]
2009
REGISTERED IN THE CAYMAN
ISLANDS
13
THE COMPANIES LAW (2007
Revision)
COMPANY LIMITED BY
SHARES
MEMORANDUM OF
ASSOCIATION
OF
SEARCHMEDIA HOLDINGS LIMITED
Adopted on
[ l
], 2009 by a
special resolution of the Members and effective immediately upon
the registration of the company as a Cayman Islands company limited
by shares.
1. The name of the
Company is SearchMedia Holdings Limited.
2. The Registered
Office of the Company shall be at the offices of Corporate Services
Limited, PO Box 309, Ugland House, Grand Cayman,
KY1-1104, Cayman Islands or at such other place as the Directors
may from time to time decide.
3. The objects for
which the Company is established are unrestricted and the Company
shall have full power and authority to carry out any object not
prohibited by the Companies Law (2007 Revision), as amended from
time to time, or any other law of the Cayman Islands.
4. The liability of
each Member is limited to the amount from time to time unpaid on
such Member’s shares.
5. The share
capital of the Company is US$101,000 divided into
(i) 1,000,000,000 Ordinary Shares of a nominal or par value of
US$0.0001 each and (ii) 10,000,000 Preferred Shares of a
nominal or par value of US$0.0001 each, provided that the Company
has the power, insofar as is permitted by law, to redeem or
purchase any of its shares and to increase or reduce the said
capital subject to the provisions of the Companies Law (2007
Revision) (as amended or modified from time to time) and the
Articles of Association and to issue any part of its capital,
whether original, redeemed or increased with or without any
preference, priority or special privilege or subject to any
postponement of rights or to any conditions or restrictions and so
that unless the conditions of issue shall otherwise expressly
declare every issue of shares, whether declared to be preferred or
otherwise, shall be subject to the powers hereinbefore
contained.
6. If the Company
is registered as exempted, its operations will be carried on
subject to the provisions of the Companies Law (2007 Revision) (as
amended or modified from time to time) and the Articles of
Association, and it shall have the power to register by way of
continuation as a body corporate limited by shares under the laws
of any jurisdiction outside the Cayman Islands and to be
deregistered in the Cayman Islands.
7. The Company may
amend its Memorandum of Association by a resolution of Members in
accordance with the relevant provisions of the Articles of
Association.
8. Capitalized
terms that are not defined herein shall bear the same meanings as
those given in the Articles of Association of the
Company.
14
THE COMPANIES LAW (2007
Revision)
COMPANY LIMITED BY
SHARES
ARTICLES OF ASSOCIATION
OF
SEARCHMEDIA HOLDINGS LIMITED
Adopted on
[ l
], 2009 by a
special resolution of the Members and effective immediately upon
the registration of the company as a Cayman Islands company limited
by shares.
1. In these
Articles, Table A in the Schedule to the Statute does not apply
and, unless there be something in the subject or context
inconsistent therewith, the following defined terms shall have the
meanings assigned to them as follows:
|
|
|
|
Affiliate
|
|
means, with respect to any given
Person, any other Person directly or indirectly Controlling,
Controlled by, or under common Control with such Person and, where
the given Person is an individual, the spouse, parent, sibling, or
child thereof;
|
|
|
|
|
|
Agreement and Plan of Merger,
Conversion and Share Exchange
|
|
means, the Agreement and Plan of
Merger, Conversion and Share Exchange dated as of March 31,
2009, among Ideation Acquisition Corp., ID Arizona Corp., and each
of the other parties thereto, as amended;
|
|
|
|
|
|
Applicable Law
|
|
means, with respect to any Person,
any and all provisions of any constitution, treaty, statute, law,
regulation, ordinance, code, rule, judgment, rule of common law,
order, decree, award, injunction, governmental approval,
concession, grant, franchise, license, agreement, directive,
requirement, or other governmental restriction or any similar form
of decision of, or determination by, or any interpretation or
administration of any of the foregoing by, any governmental
authority, whether in effect as of the date hereof or thereafter
and in each case as amended, applicable to such Person or its
subsidiaries or their respective assets;
|
|
|
|
|
|
Articles
|
|
means these Articles of Association
(including any appendix, annex, schedule and exhibit attached
hereto) as originally framed or as from time to time altered by
Special Resolution;
|
|
|
|
|
|
Auditors
|
|
means the Persons for the time being
performing the duties of auditors of the Company;
|
|
|
|
|
|
Board of Directors
or
Board
|
|
means the board of directors of the
Company;
|
|
|
|
|
|
Business
|
|
means out-of-home advertising and
media-related business, including in-elevator
advertising;
|
|
|
|
|
|
Business Day
|
|
means a day, excluding a Saturday,
Sunday, legal holiday or other day on which banks are required to
be closed in the PRC, Hong Kong or New York;
|
|
|
|
|
|
Change of Control
|
|
means any: (a) merger,
consolidation, business combination or similar transaction
involving the Company in which any of the outstanding voting
securities of the Company is converted into or exchanged for cash,
securities or other property, other than any
|
15
|
|
|
|
|
such transaction where the voting
securities of the Company outstanding immediately prior to such
transaction are converted into or exchanged for voting securities
of the surviving or transferee Person that constitute a majority of
the outstanding shares of voting securities of such surviving or
transferee Person (immediately after giving effect to such
issuance); (b) sale, lease or other disposition directly or
indirectly by merger, consolidation, business combination, share
exchange, joint venture, or otherwise of assets of the Company or
any of its Subsidiaries or controlled Affiliates representing all
or substantially all of the consolidated assets of the Company and
its Subsidiaries and controlled Affiliates; (c) issuance, sale
or other disposition of (including by way of share exchange, joint
venture, or any similar transaction by either the Company or its
shareholders) securities (or options, rights or warrants to
purchase, or securities convertible into or exchangeable for such
securities) representing 50% or more of the voting power of the
Company; provided, that any acquisition of securities directly from
the Company that the independent Directors determine is primarily
for the purposes of raising financing for the Company will not be
taken into account when determining if a Change in Control has
occurred under this clause (c); (d) transaction in which any
“person” (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act) of
securities of the Company representing 50% or more of the
outstanding voting capital of the Company; provided, that any
acquisition of securities directly from the Company that the
independent Directors determine is primarily for the purposes of
raising financing for the Company will not be taken into account
when determining if a Change in Control has occurred under this
clause (d); and (e) any combination of the
foregoing.
|
|
|
|
|
|
Class
|
|
means any class or classes of Shares
as may from time to time be issued by the Company;
|
|
|
|
|
|
Closing Price
|
|
means the closing sale price or, if
no closing sale price is reported, the last reported sale price of
the Ordinary Shares on the NYSE Amex on such date. If the Ordinary
Shares are not traded on the NYSE Amex on any date of
determination, the closing price of the Ordinary Shares on such
date of determination means the closing sale price as reported in
the composite transactions for the principal U.S. national or
regional securities exchange on which the Ordinary Shares are so
listed or quoted, or, if no closing sale price is reported, the
last reported sale price on the principal U.S. national or regional
securities exchange on which the Ordinary Shares are so listed or
quoted, or if the Ordinary Shares are not so listed or quoted on a
U.S. national or regional securities exchange, the last quoted bid
price for the Ordinary Shares in the over-the-counter market as
reported by Pink Sheets LLC or similar organization, or, if that
bid price is not available, the market price of the Ordinary Shares
on that date as determined by a nationally recognized investment
banking firm retained by the Company for this purpose.
|
16
|
|
|
|
Company
|
|
means SearchMedia International
Limited;
|
|
|
|
|
|
Company Securities
|
|
means any outstanding Securities
issued by the Company;
|
|
|
|
|
|
Constitutional
Documents
|
|
means, with respect to any Person,
the certificate of incorporation, by-laws, memorandum of
association, articles of association, or similar constitutive
documents for such Person;
|
|
|
|
|
|
Control
|
|
means, when used with respect to any
Person, the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise, and the terms
“Controlling” and “Controlled” have
meanings correlative to the foregoing. Without limiting the
foregoing, a Person shall be deemed Controlled by another Person if
such other Person, directly or indirectly, owns or has the power to
direct the voting of more than fifty percent (50%) of the
outstanding share capital or other ownership interest having voting
power to elect directors, managers or trustees of such
Person;
|
|
|
|
|
|
Convertible Security
|
|
means, with respect to any specified
Person, evidence of indebtedness, shares or other securities
directly or indirectly convertible into or exchangeable for any
shares or other units in the share capital or other ownership
interest of such specified Person, however described and whether
voting or non-voting;
|
|
|
|
|
|
Designated Stock
Exchange
|
|
the
Global Market of The Nasdaq Stock Market, the New York Stock
Exchange, NYSE Amex or any other internationally recognized stock
exchange where the Company’s securities are
traded;
|
|
|
|
|
|
Directors
|
|
means the directors for the time
being of the Company;
|
|
|
|
|
|
Encumbrance
|
|
means (i) any mortgage, charge
(whether fixed or floating), pledge, lien, hypothecation,
assignment, deed of trust, title retention, security interest or
other third party rights of any kind securing, or conferring any
priority of payment in respect of, any obligation of any Person,
including without limitation any right granted by a transaction
which, in legal terms, is not the granting of security but which
has an economic or financial effect substantially similar to the
granting of security under Applicable Law, (ii) any lease,
sub-lease, occupancy agreement, easement or covenant granting a
right of use or occupancy to any Person, (iii) any proxy,
power of attorney, voting trust agreement, interest, option, right
of first offer, right of pre-emption negotiation or refusal or
transfer restriction in favour of any Person and (iv) any
adverse claim as to title, possession or use;
|
|
|
|
|
|
Equity Security
|
|
means, with respect to any specified
Person, any shares, registered capital or other units in the share
capital or other ownership interest of such specified Person,
however described and whether voting or non-voting, all Convertible
Securities and all Option Securities of such specified
Person;
|
|
|
|
|
|
Exchange Act
|
|
means the Securities Exchange Act of
1934, as amended;
|
|
|
|
|
|
Group Companies
|
|
means the Company, the PRC Entity
and all Subsidiaries of the foregoing (including without limitation
the WFOEs); a “Group Company” means any of the Group
Companies;
|
17
|
|
|
|
HK Subs
|
|
means Great Talent Holdings Limited,
a Hong Kong company and Ad-icon Company Limited, a Hong Kong
company;
|
|
|
|
|
|
Issued Shares
|
|
means all issued and outstanding
Equity Securities in the Company assuming the exercise of all
options and the conversion or exchange of all convertible or
exchangeable Equity Securities;
|
|
|
|
|
|
Liquidation Event
|
|
shall bear the meaning as ascribed
to it in Article 135(a);
|
|
|
|
|
|
Member
|
|
means a person who is registered in
the register of members of the Company as being a holder of Shares
in the Company and includes each subscriber to the Memorandum of
Association pending entry into the register of members of certain
of such subscribers;
|
|
|
|
|
|
Memorandum of
Association
|
|
means the memorandum of association
of the Company in force and effect, as amended and restated from
time to time;
|
|
|
|
|
|
Option Security
|
|
means, with respect to any specified
Person, all options, warrants, instruments and other rights and
agreements (including without limitation any preemptive rights or
rights of first refusal) to subscribe for, purchase or otherwise
acquire any shares or other units in the share capital or other
ownership interest of such specified Person, however described and
whether voting or non-voting, or any Convertible Securities of such
specified Person;
|
|
|
|
|
|
Ordinary Resolution
|
|
means a resolution:
|
|
|
|
|
|
|
(a) passed by a simple
majority of votes cast by such Members on an as-if converted basis
as, being entitled to do so, vote in person or, in the case of any
Member being an organization, by its duly authorised representative
or, where proxies are allowed, by proxy at a general meeting of the
Company; or
|
|
|
|
|
|
|
(b) approved in writing by all
of the Members entitled to vote at a general meeting of the Company
in one or more instruments each signed by one or more of the
Members and the effective date of the resolution so adopted shall
be the date on which the instrument, or the last of such
instruments if more than one, is executed;
|
|
|
|
|
|
Ordinary Shareholders
|
|
means the Members registered from
time to time as holders of Ordinary Shares in the register of
Members of the Company;
|
|
|
|
|
|
Ordinary Shares
|
|
means the ordinary Shares in the
capital of the Company, par value of US$0.0001 per share, with the
rights and privileges as set out in these Articles;
|
|
|
|
|
|
Paid-up
|
|
means paid-up and/or credited as
paid-up;
|
|
|
|
|
|
Person
|
|
means any individual, corporation,
partnership, limited partnership, proprietorship, association,
limited liability company, firm, trust, estate or other enterprise
or entity (including, without limitation, any unincorporated joint
venture and whether or not having separate legal
personality);
|
|
|
|
|
|
PRC
|
|
means the People’s Republic of
China, but solely for the purposes of these Articles, excluding the
Hong Kong Special Administrative Region, the Macau Special
Administrative Region and the islands of Taiwan;
|
18
|
|
|
|
PRC Entity
|
|
means Shanghai Jingli Advertising
Co., Ltd.,
(Chinease Character), a limited liability company organized under
the laws of the People’s Republic of China;
|
|
|
|
|
|
Related Party
|
|
means any of the officers,
directors, supervisory board members, or holders of Equity
Securities of any Group Company or any Affiliates of any of the
foregoing;
|
|
|
|
|
|
RMB
|
|
means Renminbi, the lawful currency
of the PRC;
|
|
|
|
|
|
Seal
|
|
means the common seal of the Company
and includes every duplicate seal;
|
|
|
|
|
