Earnout Agreement - Focus Media Holding Ltd., JJ Media Investment Holding Ltd., GS Focus Holding Ltd. and 3i Group plc
EARNOUT AGREEMENT
THIS EARNOUT AGREEMENT (this "AGREEMENT"), dated November 29, 2004, is
entered into by and among Focus Media Holding Limited, an international business
company organized under the laws of the British Virgin Islands (the "COMPANY"),
JJ Media Investment Holding Limited, an international business company organized
and existing under the laws of the British Virgin Islands ("JJ MEDIA
INVESTMENT"), each of the Persons listed on Schedule A hereto (the "COMPANY
WARRANTORS"), GS Focus Holding Limited, an exempted company organized and
existing under the laws of Cayman Islands (the "LEAD INVESTOR"), 3i Group plc, a
company organized and existing under the laws of England (the "CO-INVESTOR
LEAD"), and each of the parties listed on Schedule B hereto (together with the
Lead Investor and the Co-Investor Lead, the "INVESTORS").
RECITALS
WHEREAS the Investors have agreed to purchase from the Company, and the
Company has agreed to sell to the Investors, certain Series C-2 preferred
shares, par value US$0.01 per share (the "SERIES C-2 SHARES"), of the Company on
the terms and conditions set forth in that certain Series C-2 Preferred Share
Purchase Agreement, dated as of November 9, 2004 (the "PURCHASE AGREEMENT"), by
and among the Company, the Company Warrantors and the Investors;
WHEREAS the Investors have agreed to purchase from certain existing
shareholders of the Company, and such shareholders have agreed to sell to the
Investors, certain shares of the Company held by such existing shareholders, and
the Company has agreed to exchange for such shares certain Series C-1 preferred
shares, par value US$0.01 per share (the "SERIES C-1 SHARES" and, together with
the Series C-2 Shares, the "SERIES C SHARES"), of the Company on the terms and
conditions set forth in the Purchase Agreement;
WHEREAS the Purchase Agreement provides for a purchase price of US$102.78
per share for the Series C-1 Shares and Series C-2 Shares based on the
assumption that Net Income of the Company for fiscal year 2004 will be at least
US$13,500,000;
WHEREAS, in the event this assumption proves untrue, JJ Media Investment
is willing to transfer such number of Ordinary Shares, par value US$0.01 per
share (the "ORDINARY SHARES"), of the Company to the Investors as is necessary
to reflect the resulting value of the Company;
WHEREAS the Purchase Agreement provides that the execution and delivery of
this Agreement by the parties hereto shall be a condition precedent to the
consummation of the transactions contemplated thereunder;
WHEREAS the Company and the Company Warrantors seek to induce the
Investors to consummate their investment in the Company as contemplated in the
Purchase Agreement and, to such ends, seek to satisfy the conditions precedent
to such investment by entering into this Agreement;
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
premises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
SECTION 1. INTERPRETATION
1.1. Definitions. Unless otherwise defined in this Agreement, capitalized
terms used in this Agreement shall have the following meanings:
"ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as applied in the United States of America.
"AGGREGATE INVESTMENT" means, with respect to each Investor, the
total amount paid by such Investor to purchase any capital shares of the
Company under the Purchase Agreement.
"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
Government Entity, 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.
"AUDITORS" means Deloitte, Touche & Tohmatsu, or such successor
thereto as may be from time to time duly appointed by the Company's Board
of Directors from among the Big 4 to audit the Company's annual financial
statements.
"CLOSING" has the meaning ascribed thereto in the Purchase
Agreement.
"CONSENT" means any consent, approval, authorization, waiver,
permit, grant, franchise, concession, agreement, license, exemption or
order of, registration, certificate, declaration or filing with, or report
or notice to, any Person, including any Government Entity.
"CONSTITUTIONAL DOCUMENTS" means, with respect to any Person, the
Certificate of Incorporation, Memorandum of Association, Articles of
Association, Joint Venture Agreement, or similar constitutional documents
for such Person.
"CONTRACT" means any agreement, arrangement, bond, commitment,
franchise, indemnity, indenture, instrument, lease, license or binding
understanding, whether or not in writing.
"EMPLOYEE COMPENSATION SHARE" means any Ordinary Share issued to
employees, consultants or directors of the Company either in connection
with a restricted stock plan approved by the Company's Board of Directors
or on exercise of an Employee Share Option.
"EMPLOYEE SHARE OPTIONS" means options to purchase Employee
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Compensation Shares granted to employees, consultants or directors under
any share incentive plan approved by the Company's Board of Directors.
"ENCUMBRANCE" means any claim, charge, easement, encumbrance, lease,
covenant, security interest, lien, option, pledge, rights of others, or
restriction (whether on voting, sale, transfer, disposition or otherwise),
whether imposed by agreement, understanding, law, equity or otherwise.
"GOVERNMENT ENTITY" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government.
"HONG KONG" means the Hong Kong Special Administrative Region.
"NET INCOME" means, with respect to any period, net income (or net
loss) for such period less any amount credited in arriving at such net
income amount in respect of any extraordinary gain plus reasonable lawyers
fees, accountants fees or underwriter fees incurred by the Company in
preparation for a potential initial public offering and deducted in
arriving at such net income amount so long as the sum of all such fees
does not exceed US$1,000,000 plus the sum of all amounts deducted in
arriving at such net income amount to make provision for any impairment
for acquisitions during the year ending December 31, 2004 so long as the
aggregate of such impairments does not exceed US$2,000,000, all as
computed for the Company and the Group Companies on a consolidated basis
in accordance with the Accounting Principles and as certified by the
Auditors.
"NOMINAL INVESTOR SHARE AMOUNT" means, with respect to each Investor
as of any given time, such number of Ordinary Shares as determined
according to the following formula:
Nominal Investor Share = (Total Cap x Aggregate Investment)/
------------------------------------------
Amount (Pre-Money Valuation + Total New Investor
Money)
where:
Total Cap = The issued and outstanding Ordinary Shares
(determined on an as-if converted, fully-diluted
basis) at the given time
Pre-Money = The product of (x) Net Income for the year ending
Valuation December 31, 2004 and (y) 11.1111
Total New = US$17,500,000
Investor Money
"PERSON" means any natural person, corporation limited liability
company, joint stock company, joint venture, partnership, enterprise,
trust, unincorporated organization or any other entity or organization.
"PREFERRED SHARES" means the Series A Shares, the Series B Shares,
the Series C-1 Shares and the Series C-2 Shares.
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"PRC" means the People's Republic of China, solely for purposes of
this Agreement, excluding Hong Kong, the Macau Special Administrative
Region and the islands of Taiwan.
1.2 Interpretation. For all purposes of this Agreement, except as
otherwise expressly provided, (i) the terms defined in the Section 1 shall have
the meanings assigned to them in this Section 1 and include the plural as well
as the singular, (ii) all accounting terms not otherwise defined herein have the
meanings assigned under the Accounting Principles consistently applied, (iii)
all references in this Agreement to designated "Sections" and other subdivisions
are to the designated Sections and other subdivisions of the body of this
Agreement, (iv) pronouns of either gender or neuter shall include, as
appropriate, the other pronoun forms, (v) the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Section or other subdivision, (vi) all references in
this Agreement to designated Schedules, Exhibits and Annexes are to the
Schedules, Exhibits and Annexes attached to this Agreement unless explicitly
stated otherwise, and (vii) any formula that purports to calculate the excess of
one value over another shall be deemed to yield a value equal to zero if there
is no excess.
SECTION 2. SERIES C EARNOUT.
2.1 Entitlement to Earnout Amount. Subject to the terms and conditions
herein, JJ Media Investment hereby agrees to transfer to each Investor on the
Earnout Date, for no additional consideration, such number of Ordinary Shares
(the "EARNOUT SHARES") as equal the excess, if any, of (i) the Nominal Investor
Share Amount for such Investor as of the Earnout Date over (ii) the aggregate
number of Ordinary Shares into which all Series C Shares issued to such Investor
under the Purchase Agreement are convertible at the Earnout Date. Set forth in
Annex A is an example of the number of Series C-1 Shares and Series C-2 Shares
that would be held by the Investors in aggregate pursuant to the operation of
this Agreement based on different assumptions in terms of Net Income.
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2.2 Exchange of Series C Shares for Ordinary Shares. On the Earnout Date,
in exchange for any Earnout Shares which each Investor may be entitled to
hereunder, the Company agrees to issue to such Investor such number of Series
C-2 Shares as equal the Series C-2 Apportionment therefor and such number of
Series C-1 Shares as equal the Series C-1 Apportionment therefor. On the Earnout
Date, each Investor agrees to exchange any Earnout Shares which it may be
entitled to receive hereunder for the applicable Series C-1 Shares and Series
C-2 Shares. For purposes of this Section 2.2, the Series C-2 Apportionment for
any Investor at the Earnout Date shall be determined as follows:
Series C-2 Apportionment = Earnout Shares x Series C-2 Held
-----------------------------------------
Series C Held x Series C Conversion Ratio
where:
Series C-2 Held = The number of Series C-2 Shares issued to such
Investor under the Purchase Agreement;
Series C Held = The number of Series C Shares issued to such
Investor under the Purchase Agreement; and
Series C = The number of Ordinary Shares into which a Series
Conversion Ratio C Share is convertible at the Earnout Date
For purposes of this Section 2.2, the Series C-1 Apportionment for any Investor
at the Earnout Date shall be determined as follows:
Series C-1 Apportionment = Earnout Shares x Series C-1 Held
-----------------------------------------
Series C Held x Series C Conversion Ratio
where:
Series C-1 Held = The number of Series C-1 Shares issued to such
Investor under the Purchase Agreement.
In determining the Series C-1 Apportionment and the Series C-2 Apportionment
with respect to any Investor, any fractional amounts shall be rounded to the
nearest whole number.
2.3 Earnout Date. The consummation of the transactions described in
Sections 2.1 and 2.2 shall take place in the offices of O'Melveny & Myers LLP,
20th Floor, Kerry Centre, 1515 Nanjing Road West, Shanghai 200040, China, at
10:00am, on the date ten (10) days after the Auditors have certified the Net
Income for the year ending December 31, 2004, or at such other place or at such
other time as the Lead Investor and the Company may otherwise mutually agree to
(the "EARNOUT DATE").
2.4 Actions at the Earnout Date. On the Earnout Date, (i) JJ Media
Investment shall deliver to the Company on behalf of each Investor a certificate
or certificates evidencing such number of Ordinary Shares as equal the Earnout
Shares to which such Investor is entitled, accompanied by a valid Instrument of
Transfer in favor of such Investor; (ii) the Company shall deliver to such
Investor a certificate or certificates, in form reasonably satisfactory to such
Investor, evidencing such number of Series C-2 Shares as is equal to the number
of Series C-2 Shares such Investor is entitled to receive hereunder, and (iii)
the Company shall deliver to such Investor a certificate or certificates in form
reasonably satisfactory to such Investor, evidencing such number of Series C-1
Shares as is equal to the number of Series C-1 Shares such Investor is entitled
to receive hereunder. From and after
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the Earnout Date, all rights that JJ Media Investment may enjoy with respect to
such Ordinary Shares as should be transferred to any Investor hereunder,
regardless of whether JJ Media Investment shall duly tender the certificates
therefor to the Company on the Earnout Date, shall cease, and such shares shall
not be transferred on the books of the Company or be deemed to be outstanding
for any purpose whatsoever. The transfer of the Earnout Shares will be treated
as an adjustment to the number of shares purchased by the Investors pursuant to
the Purchase Agreement.
2.5 Determination of Net Income. The Company shall cause the Auditors to
certify the Net Income for the year ending December 31, 2004 as soon as
practicable, but in any event within ninety (90) days after the end of such
year.
SECTION 3. NEGATIVE COVENANTS
3.1 No Share Dividends, Subdivisions, Combinations or Consolidations of
Company's Securities. From the date hereof through the Earnout Date, the Company
shall not subdivide the outstanding capital shares of the Company (by share
split, or otherwise) into a greater number of capital shares, or combine or
consolidate the outstanding capital shares of the Company (by reclassification
or otherwise) into a lesser number of capital shares.
3.2 No Distributions. From the date hereof through the Earnout Date, the
Company shall not make, or file a record date for the determination of holders
of capital shares entitled to receive any distribution payable in securities or
assets of the Company except for (i) any conversion of Preferred Shares pursuant
to the rights and preferences thereof, (ii) any redemption or other repurchase
of Preferred Shares pursuant to the rights and preferences thereof, or (iii) the
repurchase of Employee Compensation Shares at no more than cost from terminated
employees, officers or consultants.
3.3 No New Issuance. From the date hereof through the Earnout Date, the
Company shall not issue any new capital shares, except for (i) any issuance of
Ordinary Shares upon conversion of any Preferred Shares, (ii) as required by
Article 10(b) or Article 10(c) of the Memorandum of Association of the Company
or (iii) any issuance of Employee Compensation Shares.
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3.4 No Reclassification, Exchange and Substitution. From the date hereof
through the Earnout Date, the Company shall not change the Series C-1 Shares or
Series C-2 Shares into the same or a different number of shares of any other
class or classes of shares, whether by capital reorganization, reclassification
or otherwise.
3.5 No Other Dilutive Events. From the date hereof through the Earnout
Date, the Company shall not take any other action that may adversely affect the
essential intent and principles hereof.
SECTION 4. representations and warranties of the company warrantors
The Company and each of the Company Warrantors jointly and severally
represent, warrant and covenant to each of the Investors that:
4.1 Organization, Good Standing and Qualification.
The Company is an international business company, duly organized,
validly existing and in good standing under the laws of the British Virgin
Islands. The Company has all requisite corporate power and authority to own and
operate its properties, to carry on its business as now conducted and as
proposed to be conducted and to perform each of its obligations hereunder. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required. Since its establishment,
the Company has carried on its business in compliance with Applicable Law.
Each Corporate Warrantor is duly organized and validly existing
under the laws of the jurisdiction where it purports to exist. Such Corporate
Warrantor has all requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, and to perform each of its obligations hereunder. Such Corporate
Warrantor is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required.
4.2 Authorization.
All corporate action necessary on the part of the Company and its
officers, directors and shareholders has been taken for the authorization,
execution, and delivery by the Company of this Agreement and the performance by
the Company of its obligations hereunder. This Agreement constitutes the valid
and legally binding obligation of the Company, enforceable in accordance with
its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other remedies
in the nature of equitable remedies.
All corporate action necessary on the part of any Company Warrantor
and its officers, directors and shareholders has been taken for the
authorization, execution and delivery by such Company Warrantor of this
Agreement and the performance by such Company Warrantor of its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of such Company Warrantor, enforceable in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally, and
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(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other remedies in the nature of equitable remedies.
4.3 Valid issuance of Securities. The Series C-2 Shares and Series C-1
Shares being issued to each Investor hereunder, when issued and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully-paid and non-assessable, and will
be free of restrictions on transfer and other Encumbrances, other than such
restrictions on transfer or other Encumbrances as may be imposed by this
Agreement, the Purchase Agreement or the Memorandum and Articles of Association
of the Company.
4.4 Compliance; No Violations.
No Consent is required of any Government Entity on the part of the
Company or any Company Warrantor in connection with the consummation of the
transactions contemplated by this Agreement.
The execution, delivery, and performance by any of the Company or
the Company Warrantors of this Agreement requires no Consent of any third party
and (i) will not result in any violation of, be in conflict with, or constitute
a default under, with or without the passage of time or the giving of notice,
any provision of its Constitutional Documents as in effect at the date hereof,
any Applicable Law, or any material Contract or obligation to which it is a
party or by which it is bound or (ii) accelerate or constitute an event
entitling the holder of any indebtedness of the Company or any Company Warrantor
to accelerate the maturity of any such indebtedness or to increase the rate of
interest presently in effect with respect to such indebtedness, or (iii) result
in the creation of any Encumbrance upon any of the properties or assets of any
of the Company or the Company Warrantors.
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4.5 Offering. Subject in part to the truth and accuracy of each Investor's
representations set forth in Section 5, the issuance and delivery pursuant
hereto of any Series C-2 Share or Series C-1 Share is exempt from the
registration requirements of any applicable securities laws, and neither the
Company nor any authorized agent acting on its behalf will take any action that
would cause the loss of such exemption.
4.6 Other Representations and Warranties. The representations and
warranties in the Purchase Agreement were true and accurate as of the date given
and, except insofar as explicitly waived in writing at the Closing by the Lead
Investor and the Co-Investor Lead, were true and accurate as of the date of the
Closing with reference to the facts and circumstances then existing.
SECTION 5. Representations and warranties of the InvestorS
Each Investor represents, warrants and covenants to the Company that:
5.1 Authorization. Such Investor has full power and authority to enter
into this Agreement, and, assuming due and valid execution and delivery hereof,
the Agreement constitutes its valid and legally binding obligation, enforceable
in accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
5.2 Purchase Entirely for Own Account. This Agreement is made with such
Investor in reliance upon such Investor's representation to the Company, which
by such Investor's execution of this Agreement such Investor hereby confirms,
that any Series C-2 Shares and Series C-1 Shares to be acquired by the Investor
hereunder (collectively, the "SECURITIES") will be acquired by the Investor for
investment for the Investor's own account, not as a nominee or agent (except
insofar as 3i AP Tech Nominees Limited and 3i Nominee Limited, respectively,
will hold any shares subscribed for or purchased hereunder by 3i Asia Pacific
Technology LP and 3i Asia Pacific 2004-06 LP), and not with a view to the resale
or distribution of any part thereof, and that such Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, such Investor further represents that it
does not have any contract, undertaking, agreement or arrangement with any
Person to sell, transfer or grant participations to such Person or to any third
Person, with respect to any of the Securities.
5.3 Investment Experience. Such Investor acknowledges that it can bear the
economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of acquiring the Series C-2 Shares and the Series C-1 Shares. Such
Investor also represents it has not been organized solely for the purpose of
acquiring the Series C-2 Shares or the Series C-1 Shares.
5.4 Status of Investor. Such Investor (i) is purchasing the securities
outside the United States in compliance with Regulation S under the Securities
Act of 1933, as amended (the "ACT") and in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction or
(ii) is an "accredited investor" within the meaning of Securities and Exchange
Commission ("SEC") Rule 501 of Regulation D, as presently in effect, under the
Act.
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5.5 Restricted Securities. Such Investor understands that the securities
it is receiving are characterized as "restricted securities" under U.S. federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act, only in certain limited circumstances. In this connection, such
Investor represents that it is familiar with SEC Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
SECTION 6. Miscellaneous
6.1 Binding Effect; Assignment. This Agreement shall be binding upon and
shall be enforceable by each party, its successors and permitted assigns. No
party may assign any of its rights or obligations hereunder without the prior
written approval of the other party.
6.2 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to conflicts
of laws principles thereunder.
6.3 Dispute Resolution.
(a) Any dispute, controversy or claim (each, a "DISPUTE") arising
out of or relating to this Agreement, or the interpretation, breach, termination
or validity hereof, shall be resolved at the first instance through consultation
between the parties to such Dispute. Such consultation shall begin immediately
after any party has delivered written notice to any other party to the Dispute
requesting such consultation.
(b) If the Dispute is not resolved within sixty (60) days following
the date on which such notice is given, the Dispute shall be submitted to
arbitration upon the request of any party to the Dispute with notice to each
other party to the Dispute (the "ARBITRATION NOTICE").
(c) The arbitration shall be conducted in Hong Kong under the
auspices of the Hong Kong International Arbitration Centre (the "CENTRE"). There
shall be three (3) arbitrators. The claimants in the Dispute shall collectively
choose one (1) arbitrator, and the respondents shall collectively choose one (1)
arbitrator. The Secretary General of the Centre shall select the third
arbitrator, who shall be qualified to practice law in the State of New York. If
any of the members of the arbitral tribunal have not been appointed within
thirty (30) days after the Arbitration Notice is given, the relevant appointment
shall be made by the Secretary General of the Centre.
(d) The arbitration proceedings shall be conducted in English. The
arbitration tribunal shall apply the Arbitration Rules of the United Nations
Commission on International Trade Law, as in effect at the time of the
arbitration. However, if such rules are in conflict with the provisions of this
Section 6.3, including the provisions concerning the appointment of arbitrator,
the provisions of this Section 6.3 shall prevail.
(e) Each party to the arbitration shall cooperate with each other
party to the arbitration in making full disclosure of and providing complete
access to all information and documents requested by such other party in
connection with such arbitration proceedings, subject only to any
confidentiality obligations binding on such party.
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(f) 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.
(g) The arbitrator shall decide any dispute submitted by the parties
to the arbitration strictly in accordance with the substantive law of the State
of New York and shall not apply any other substantive law.
(h) Any party to the Dispute shall be entitled to seek preliminary
injunctive relief, if possible, from any court of competent jurisdiction pending
the constitution of the arbitral tribunal.
(i) During the course of the arbitration tribunal's adjudication of
the dispute, this Agreement shall continue to be performed except with respect
to the part in dispute and under adjudication.
(j) The cost of arbitration (including legal, accounting and other
professional fees and expenses reasonably incurred by any prevailing party with
respect to the investigation, collection, prosecution and/or defense of any
claim in the Dispute) shall be borne pro rata by each losing party.
6.4. Language. The governing version of this Agreement is the English
language version. Any translation of this Agreement into Chinese or any other
language is for the convenience of the parties only.
6.5 Amendments. Except as otherwise permitted herein, this Agreement and
its provisions may be amended, changed, waived, discharged or terminated only by
a writing signed by each of the parties.
6.6 Notices. All notices, claims, certificates, requests, demands and
other communications under this Agreement shall be made in writing and shall be
delivered to any party hereto by hand or sent by facsimile, or sent, postage
prepaid, by reputable overnight courier services at the address given for such
party on the signature pages hereof (or at such other address for such party as
shall be specified by like notice), and shall be deemed given when so delivered
by hand, or if sent by facsimile, upon receipt of a confirmed transmittal
receipt, or if sent by overnight courier, five (5) calendar days after delivery
to or pickup by the overnight courier service.
6.7 Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other party may reasonably request to give effect to the terms and intent of
this Agreement.
6.8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior written or oral understandings or agreements.
6.9 Severability. If any provision of this Agreement shall be held invalid
or unenforceable to any extent, the remainder of this Agreement shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
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6.10 Remedies Cumulative. The rights and remedies available under this
Agreement or otherwise available shall be cumulative of all other rights and
remedies and may be exercised successively.
6.11 Counterpart Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6.12 No Third Party Beneficiary. Except to the extent expressly stated
otherwise, nothing in this Agreement is intended to confer upon any Person other
than the parties hereto and their respective successors and permitted assigns
any rights, benefits, or obligations hereunder.
[The remainder of this page has been left intentionally blank.
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IN WITNESS WHEREOF the parties hereto have caused their duly authorized
representatives to execute this Agreement as of the first date written above.
FOCUS MEDIA HOLDING LIMITED
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
JJ MEDIA INVESTMENT HOLDING LIMITED
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
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SHANGHAI FOCUS MEDIA ADVERTISING CO., LTD.
[CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
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SHANGHAI PERFECT MEDIA ADVERTISING CO., LTD.
[CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Floor 2, Pufa Building, No. 288, Pudong Avenue,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-50541466
Fax: 86-21-50541499
Earnout Agreement
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<PAGE>
SICHUAN FOCUS MEDIA ADVERTISING COMPANY LTD.
[CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Room 4C, Chuanxin Dasha,
No. 18, Renming Nan Road,
Chengdu, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-028-86083386
Fax: 86-028-86200388
Earnout Agreement
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<PAGE>
CHANGSHA CENTURY FOCUS MEDIA ADVERTISING COMPANY
LTD. [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
---------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Room 1213, New Century Plaza,
No. 692, Furong Zhong Lu,
Changsha, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-0731-5179396
Fax: 86-0731-5179396-888
Earnout Agreement
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<PAGE>
FOCUS MEDIA WUHAN GESHI ADVERTISING COMPANY LTD.
[CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
---------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Room 4101, World Trade Plaza,
No. 686, Jiefang Avenue,
Wuhan, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-027-85448093
Fax: 86-027-85448386
Earnout Agreement
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<PAGE>
QINGDAO FOCUS MEDIA ADVERTISING COMPANY LTD.
[CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
---------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Room 12E, Plaza A, Jing du Garden,
No. 37, Jinghai Xi Road,
Qingdao, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-0532-6675162
Fax: 86-0532-6675182-12
Earnout Agreement
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<PAGE>
ZHEJIANG RUIHONG FOCUS MEDIA
CULTURE COMMUNICATIONS
COMPANY LTD. [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Room 909, Plaza C, Huanglong Century Plaza,
No. 1, Hangda Road,
Hangzhou, China
Attn: Jiang Nanchun
Tel: 86-0571-88211033
Fax: 86-0571-87901087
Earnout Agreement
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<PAGE>
CHONGQIN GEYANG FOCUS MEDIA
CULTURE COMMUNICATION
COMPANY LTD. [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
---------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Floor 25, Plaza A, No. 3, Qingnian Road,
Quzhong Qu,
Chongqing, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-023-63708688
Fax: 86-023-63731117
Earnout Agreement
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<PAGE>
NANJING FOCUS MEDIA ADVERTISING
COMPANY LTD. [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
---------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
C4, Floor 12, No. 89, Hanzhong Road,
Nanjing, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-025-84720292
Fax: 86-025-84720291
Earnout Agreement
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<PAGE>
DALIAN FOCUS MEDIA ADVERTISING
COMPANY LTD. [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Room 1309, No. 45, Shanghai Road,
Dalian, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-0411-82648252
Fax: 86-0411-82648353
Earnout Agreement
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<PAGE>
FOCUS MEDIA CHANGSHA HOLDING
LIMITED
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zha Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
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<PAGE>
YUNNAN FOCUS MEDIA ADVERTISING
COMPANY LTD. [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Floor 20, No. 612, Beijing Road,
Kuming, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-0871-3116615
Fax:
Earnout Agreement
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<PAGE>
SHANGHAI ON-TARGET
COMMUNICATIONS CO., LTD. [CHINESE
CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
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<PAGE>
SHANGHAI FOCUS MEDIA ADVERTISING &
COMMUNICATIONS CO., LTD. [CHINESE
CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
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<PAGE>
PERFECT MEDIA HOLDING LIMITED
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
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<PAGE>
FOCUS MEDIA MULTIMEDIA
TECHNOLOGY (SHANGHAI) COMPANY
LTD. [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
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<PAGE>
FOCUS MEDIA DALIAN HOLDING LIMITED
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
S-2
<PAGE>
FOCUS MEDIA QINGDAO HOLDING
LIMITED
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade
Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
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<PAGE>
JIANG NANCHUN [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Earnout Agreement
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<PAGE>
FOCUS MEDIA (CHINA) HOLDING LIMITED
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng world Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
<PAGE>
SHANGHAI QIANJIAN ADVERTISING
COMPANY LTD [CHINESE CHARACTERS]
By: /s/ Jiang Nanchun
----------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Unit 2107, Broadcasting Building,
No. 1376, Hong Qiao Lu,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-62095508
Fax: 86-21-62095509
Earnout Agreement
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<PAGE>
FOCUS MEDIA HOLDING LIMITED
By: /s/ David Chou
----------------------------------------
Name: David Chou
Capacity: Authorized Signatory
Address for notice:
68/F Cheung Kong Center
2 Queen's Road Central
Hong Kong
Attn: David Chou
Tel: 852-2978-1151
Fax: 852-2978-0440
Earnout Agreement
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<PAGE>
3I GROUP PLC
By: /s/ Cheng Sim Tan
----------------------------------------
Name: Cheng Sim Tan
Capacity: Authorized Signatory
Address for notice:
Suite 1903, 19/F
Two International Finance Centre
8 Finance Street
Central, Hong Kong
Attn: Cheng Sim Tan
Tel: 852-2901-8188
Fax: 852-2537-7886
with a copy to:
3i Investments plc
80 Raffles Place
#33-20 UOB Plaza 2
Singapore 048624
Attn: Cheng Sim Tan
Tel: 65-6438-3131
Fax: 65-6536-2429
Earnout Agreement
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<PAGE>
3I ASIA PACIFIC TECHNOLOGY LP
Acting by its manager, 3i Investment plc
By: /s/ Cheng Sim Tan
----------------------------------------
Name: Cheng Sim Tan
Capacity: Authorized Signatory
Address for notice:
Suite 1903, 19/F
Two International Finance Centre
8 Finance Street
Central, Hong Kong
Attn: Cheng Sim Tan
Tel: 852-2901-8188
Fax: 852-2537-7886
with a copy to:
3i Investments plc
80 Raffles Place
#33-20 UOB Plaza 2
Singapore 048624
Attn: Cheng Sim Tan
Tel: 65-6438-3131
Fax: 65-6536-2429
Earnout Agreement
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<PAGE>
3I ASIA PACIFIC 2004-06LP
Acting by its manager, 3i Investment plc
By: /s/ Cheng Sim Tan
----------------------------------------
Name: Cheng Sim Tan
Capacity: Authorized Signatory
Address for notice:
Suite 1903, 19/F
Two International Finance Centre
8 Finance Street
Central, Hong Kong
Attn: Cheng Sim Tan
Tel: 852-2901-8188
Fax: 852-2537-7886
with a copy to:
3i Investments plc
80 Raffles Place
#33-20 UOB Plaza 2
Singapore 048624
Attn: Cheng Sim Tan
Tel: 65-6438-3131
Fax: 65-6536-2429
Earnout Agreement
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<PAGE>
KTB/UCI CHINA VENTURES I LIMITED
By: /s/ Wei Yu
----------------------------------------
Name: Wei Yu
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road
Shanghai, China
Attn: Wei Yu
Tel: 86-21-32124668
Fax: 86-21-52400958
Earnout Agreement
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<PAGE>
MAX WEALTH ENTERPRISES LIMITED
By: /s/ Neil Shen
----------------------------------------
Name: Neil Shen [CHINESE CHARACTER]
Capacity: Director
Address for notice:
8A, No. 2 Conduit Road, Mid Levels
Hong Kong
Attn: Neil Shen [CHINESE CHARACTERS]
Tel: 852-2169-0911
Fax: 852-2169-092
Earnout Agreement
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