Clawback Rights Agreement - Focus Media Holding Ltd., JJ Media Investment Holding Ltd. and Jiang Nanchun
CLAWBACK RIGHTS AGREEMENT
THIS CLAWBACK RIGHTS AGREEMENT (this "AGREEMENT"), dated November 29,
2004, is entered into by and among Focus Media Holding Limited, an international
business company organized and existing 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 ("MANAGERCO"), Jiang Nanchun [CHINESE CHARACTER] of 28th Floor, Zhao
Feng World Trade Building, No. 369 Jiangsu Road, Shanghai, China, each of the
parties set forth in Schedule A (the "INVESTORS") and each of the parties set
forth in Schedule B (the "EXISTING PREFERRED HOLDERS").
RECITALS
WHEREAS, as of the date hereof, ManagerCo holds 688,000 of the Company's
ordinary shares, par value US$0.01 per share (the "ORDINARY SHARES");
WHEREAS ManagerCo has been established by Mr. Jiang to invest in and hold
an interest in the Company and, subject to the terms and conditions of this
Agreement, it is intended that, as of any given time, Mr. Jiang should be the
ultimate beneficial owner of all such interest in the Company, free and clear of
all Encumbrances other than in connection with this Agreement or the
Shareholders Agreement (the "AGREED BENEFICIAL INTEREST");
WHEREAS, the Company, MangerCo, the Existing Preferred Holders and the
Investors are parties to a Share Purchase Agreement, dated November 9, 2004 (the
"SHARE PURCHASE AGREEMENT");
WHEREAS, it is a condition precedent under the Share Purchase Agreement
that the Company, ManagerCo and Mr. Jiang enter into this Agreement; and
WHEREAS the Company, ManagerCo, the Existing Preferred Holders and Mr.
Jiang seek to induce the Investors to consummate their investment in the Company
as contemplated in the Share Purchase Agreement, and to such ends, seek to
satisfy the conditions precedent to such investment by entering into this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual covenants and agreements set forth herein and for other good and valuable
consideration, the adequacy of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Interpretation
Definitions. Unless otherwise defined in this Agreement, capitalized terms
used in this Agreement shall have the following meanings:
"ACCOUNTING PRINCIPLES" shall mean generally accepted accounting
principles as applied in the United States of America.
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"AGREED BENEFICIAL OWNER" means, as of the date hereof, Jason Jiang.
"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.
"DEBTOR RELIEF LAW" means any laws relating to the liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or
similar debtor relief in any applicable jurisdiction from time to time in
effect and affecting the rights of creditors generally.
"EARNOUT AGREEMENT" means that certain Earnout Agreement, dated of
even date herewith, among the Company, Mr. Jiang and the Investors.
"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.
"EQUITY SECURITIES" means any Ordinary Shares or Ordinary Share
Equivalents.
"FOCUS SHARES" means, as of any given time, all of the Ordinary
Shares and Ordinary Share Equivalents held by ManagerCo.
"HOLDERS" means, the Investors and the Existing Preferred Holders,
together with the permitted transferees and assigns of any Holder.
"HONG KONG" means the Hong Kong Special Administrative Region.
"IPO" means a firm commitment underwritten initial public offering
of the Company's Ordinary Shares.
"LIABILITIES" means, with respect to any Person, liabilities owing
by such Person of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due.
"ORDINARY SHARES" means the ordinary shares, par value US$0.01 per
share, of the Company.
"ORDINARY SHARE EQUIVALENTS" means warrants, options and rights
exercisable for Ordinary Shares and instruments convertible or
exchangeable for Ordinary Shares.
"PERSON" means any natural person, limited liability company, joint
stock company, joint venture, partnership, enterprise, trust,
unincorporated organization or any other entity or organization.
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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.
"QUALIFIED EXCHANGE" means the New York Stock Exchange, the Nasdaq
Stock market's National Market System, the Main Board of the Hong Kong
Stock Exchange, the Main Market of the London Stock Exchange or the
Mainboard of the Singapore Exchange.
"SERIES C MAJORITY" means, for any given time, Holders representing
a majority in voting power of the Series C Shares then held by all
Holders.
"SERIES C SHARES" means the Series C Convertible preferred shares,
par value US$0.01 per share.
"SERIES C QPO" means an IPO by the Company on a Qualified Exchange
(or such other exchange as shall be approved in writing by the holders of
a majority in voting power of the Series C Shares) of Ordinary Shares
representing at least 25% of the fully-diluted share capital of the
Company immediately following the offering, at a price per share that
values the Company at no less than US$335,000,000 immediately prior to the
offering.
"SHAREHOLDER AGREEMENT" means that certain Amended and Restated
Shareholders Agreement, dated of even date herewith, among the Company,
ManagerCo and the additional parties named therein.
Interpretation. For all purposes of this Agreement, except as herein
otherwise expressly provided, (i) the terms defined in 0 shall have the meanings
assigned to them in 0 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, (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, and (vi) all references in this Agreement to designated Schedules,
Exhibits and Annexes are to the Schedules, Exhibits and Annexes attached to this
Agreement.
Prohibition on transfers or indebtedness
Transfer of Interest. The Agreed Beneficial Owner will not sell, assign,
transfer, pledge, hypothecate, or otherwise permit to be encumbered or dispose
of in any way, all or any part of any interest in ManagerCo now or hereafter
owned or held by the Agreed Beneficial Owner. Any sale, assignment, transfer,
pledge, hypothecation or other encumbrance or disposition of any interest in
ManagerCo not made in conformance with this Agreement shall be null and void,
shall not be recorded on the books of ManagerCo, and shall not be recognized by
ManagerCo.
Indebtedness. ManagerCo shall not create, incur, assume, guaranty or
otherwise suffer to exist any Liability other than (i) pursuant to this
Agreement or the Shareholders Agreement or (ii) any Liability for legal fees or
other amounts incurred in the ordinary course
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to maintain ManagerCo as a company in good standing in the British Virgin
Islands which Liability is discharged within thirty (30) days of becoming due
and payable.
Clawback
Clawback Right. Subject to the terms and conditions under this Section 3,
ManagerCo hereby grants the Holders a right (a "CLAWBACK RIGHT") to purchase
all, but not less than all, the Focus Shares at a price equal to the aggregate
par value thereof (the "CLAWBACK PRICE") following the occurrence of an Event of
Default.
Optional Exercise.
The Clawback Right granted under this Section may be exercised by a
Series C Majority delivering written notice (a "CLAWBACK EXERCISE NOTICE") to
ManagerCo, together with a certified check or bank cashier's check for not less
than the Clawback Price, not later than the date one (1) year after the first
date that ManagerCo shall give written notice to each Holder of the occurrence
of an Event of Default. At such time as a Series C Majority delivers a Clawback
Exercise Notice to ManagerCo, the Series C Majority shall also deliver a copy of
such notice to the Company and to each other Holder.
Upon delivery of a Clawback Exercise Notice by a Series C Majority
and payment of the Clawback Price to ManagerCo, notwithstanding that the
Company's register of members may not have been updated or that share
certificates may not immediately be delivered to the Holders, (i) the Focus
Shares shall be deemed to have been transferred to the Holders pro rata,
according to the respective number of Ordinary Shares held thereby (assuming the
exercise, conversion or exchange of any Ordinary Share Equivalents) at the date
of the Clawback Exercise Notice, and each Holder shall be deemed to be the
holder of record of the applicable number of Focus Shares, and (ii) ManagerCo
shall be deemed to have transferred all rights that it may have with respect to
the Focus Shares, shall no longer have any rights as a holder thereof and shall
promptly deliver all certificates evidencing the Focus Shares, together with
duly executed instruments of transfer with respect thereto, to such Person as is
designated in the Clawback Exercise Notice to represent the Holders in such
respect.
The Series C Majority exercising the Clawback Rights hereunder shall
have a right to seek reimbursement from each other Holder for a pro rata portion
of the Clawback Price paid by the Series C Majority to ManagerCo, determined
according to the respective number of Ordinary Shares held by the Holders
(assuming the exercise, conversion or exchange of any Ordinary Share
Equivalents) at the date of the Clawback Exercise Notice. Each other Holder
shall pay such pro rata portion of the Clawback Price promptly, and in any event
within fifteen (15) days after receipt of written notice from the Series C
Majority requesting payment thereof, payment to be made in accordance with any
payment instructions as shall be set forth in such notice.
Automatic Exercise.
Following the occurrence of an Event of Default under Section 0, the
Clawback Right granted hereunder shall be deemed to have been automatically
exercised immediately as of the time of such Event of Default. From such
exercise, notwithstanding that the Company's register of members may not have
been updated or that share certificates may not immediately be delivered to the
Holders, (i) the Focus Shares shall be deemed to
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<PAGE>
have been transferred to the Holders pro rata, according to the respective
number of Ordinary Shares held thereby (assuming the exercise, conversion or
exchange of any Ordinary Share Equivalents) at the time of the Event of Default,
and each Holder shall be deemed to be the holder of record of the applicable
number of Focus Shares, and (ii) ManagerCo shall be deemed to have transferred
all rights that it may have with respect to the Focus Shares, shall no longer
have any rights as a holder thereof and shall promptly deliver to such Person as
is indicated in the Clawback Exercise Notice all certificates evidencing the
Focus Shares, together with duly executed instruments of transfer with respect
thereto.
Promptly following ManagerCo giving notice thereto of an Event of
Default under Section 0 below, each Holder shall pay ManagerCo, at the principal
office of ManagerCo, or at such other office or agency as ManagerCo may
designate by notice to such Holder in writing, an amount equal to such Holder's
pro rata portion of the Clawback Price, determined according to the respective
number of Ordinary Shares held by the Holders (assuming the exercise, conversion
or exchange of any Ordinary Share Equivalents) at the date of such Event of
Default.
Event of Default. For purposes of this Agreement, an "EVENT OF DEFAULT"
shall mean the occurrence of any of the circumstances described below, following
the date hereof:
(i) the Agreed Beneficial Owner shall cease to hold its full Agreed
Beneficial Interest, (ii) any Person other than the Agreed
Beneficial Owner shall acquire any interest in the equity securities
of ManagerCo, whether directly or indirectly, or (iii) any Person
other than the Agreed Beneficial Owner shall Control ManagerCo.
all or any part of Focus Shares or the issued and outstanding shares of
ManagerCo shall become subject to any Encumbrance (other than any
Encumbrance imposed by the Company's Memorandum and Articles of
Association, this Agreement, the Shareholders Agreement or the
Earnout Agreement), and such Encumbrance shall not be removed within
fifteen (15) days of coming into existence.
ManagerCoor the Agreed Beneficial Owner institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes
an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of
ManagerCo or the Agreed Beneficial Owner and the appointment
continues undischarged or unstayed for thirty (30) calendar days; or
any proceeding under any Debtor Relief Law relating to ManagerCo or
the Agreed Beneficial Owner or to all or any material part of the
property thereof is instituted without the consent thereof and
continues undismissed or unstayed for thirty (30) calendar days, or
an order for relief is entered in any such proceeding; or
ManagerCoor the Agreed Beneficial Owner shall be in breach of any of its
obligations under this Agreement and shall not remedy such breach
within fifteen (15) days after any Holder has delivered written
notice to ManagerCo thereof.
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Notice. Promptly following the occurrence of an Event of Default, and in
any event within three (3) days thereafter, ManagerCo shall deliver written
notice of the Event of Default to each of the Holders and the Company.
Additional Shares or Substituted Securities. In the event of the
declaration of a share dividend, a spin-off, a share split, an adjustment in
conversion ratio, a recapitalization or a similar transaction affecting the
Focus Shares, the Clawback Right under this 0 shall apply mutatis mutandis to
any new, substituted or additional securities that by reason of such transaction
are distributed with respect to any Focus Share, or into which such Focus Share
thereby becomes convertible.
Earnout Agreement. Following any exercise of the Clawback Rights
hereunder, any rights enjoyed against ManagerCo by any of the Investors under
the Earnout Agreement shall be enjoyed mutatis mutandis against the Holders in
respect of the Equity Securities acquired by such Holders from ManagerCo
pursuant to the Clawback Rights. None of the Holders shall transfer any Equity
Securities acquired from ManagerCo in the exercise of the Clawback Rights
hereunder until such time as all transactions required to occur at the Earnout
Date (as defined in the Earnout Agreement) under the Earnout Agreement shall
have been consummated. To the extent the Holders are required to transfer any
Equity Securities to the Investors under this Section, such obligation to
transfer Equity Securities shall be allocated proportionately among the Holders
in accordance with the respective number of Equity Securities (determined on an
as-if converted basis) acquired thereby in the exercise of the Clawback Rights.
Information Rights
Disclosure of Beneficial Ownership. In furtherance of the intent of this
Agreement:
On the date hereof, ManagerCo shall provide the Company with
evidence reasonably satisfactory to the Company that the Agreed Beneficial Owner
owns its full Agreed Beneficial Interest.
Within fifteen (15) days after such time as any of the Company or
the Holders may give written notice requesting such evidence, ManagerCo shall
provide the Company or such Holder with evidence reasonably satisfactory to the
Company or such Holder that no Event of Default has occurred. The right granted
to the Company and the Holders under the preceding sentence of this paragraph 0
may be exercised as often as may be reasonably requested by the Company or any
Holder.
Other Information Rights. ManagerCo shall permit any representative
designated by any of the Company or the Holders to inspect any of the properties
or assets of ManagerCo, including, without limitation, ManagerCo's books of
account and register of members, and to discuss its affairs, finances and
accounts with its officers, employees, agents and lenders, all at such
reasonable times and as often as may be reasonably requested.
Accuracy of Records. ManagerCo will at all times keep records with respect
to its issued and outstanding share capital (and any warrants, options and
rights exercisable for its share capital and instruments convertible or
exchangeable for its share capital) which are as accurate, complete and
comprehensive as those customarily maintained by a reasonably prudent company.
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Miscellaneous
Termination. This Agreement shall terminate upon the closing of a Series C
QPO.
Binding Effect; Assignment. This Agreement and the rights and obligations
of the parties hereunder shall inure to the benefit of, and be binding upon,
their respective successors and permitted assigns. The rights of any Holder
hereunder shall be assignable by such Holder to the extent it transfers any
Equity Securities to any other Person. Except as provided above, this Agreement
and the rights and obligations of any party hereunder shall not otherwise be
assigned without the mutual written consent of the other parties.
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.
Dispute Resolution.
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.
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").
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 arbitrator, and the respondents shall collectively choose one 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.
The arbitration proceedings shall be conducted in English and
Chinese. 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 0, including the provisions concerning the appointment of
arbitrator, the provisions of this Section 0 shall prevail.
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.
The award of the arbitration tribunal shall be final and binding
upon the parties, and the prevailing party may apply to a court of competent
jurisdiction for enforcement of such award.
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The arbitrators shall decide any dispute submitted by the parties to
the arbitration tribunal strictly in accordance with the substantive law of the
State of New York and shall not apply any other substantive law.
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.
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.
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.
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 hereto.
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.
Further Assurances. Each party hereto 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 hereto may reasonably request to give effect to the terms and
intent of this Agreement.
Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior written or oral understandings or agreements.
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.
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.
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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.
No Third Party Beneficiary. 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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FARMAC HOLDING LIMITED
By: /s/ Li Gang
------------------------------------
Name: Li Gang
Capacity: Authorized Signatory
Address for notice:
16E Tower 10, South Horizons
Ap Lei Chau
Hong Kong, PRC
Attn: Li Gang
Tel:
Fax: 86-21-59880789
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SB CHINA HOLDINGS PTE LIMITED
By: /s/ Wei Yu
------------------------------------
Name: Wei Yu [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Wei Yu [CHINESE CHARACTERS]
Tel: 86-21-32124668
Fax: 86-21-52400958
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ELITE SELECT GROUP LIMITED
By: /s/ Yang Chang Bo
------------------------------------
Name: Yang Chang Bo
Capacity: Authorized Signatory
Address for notice:
P.O. Box 957
Offshore Incorporations Center
Road Town, Tortola
British Virgin Islands
Attn: Yang Chang Bo
Tel:
Fax: 86-10-6433-6600
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DRAPER FISHER JURVETSON EPLANET
PARTNERS FUND, LLC
By: /s/ John Fisher
------------------------------------
Name: John Fisher
Capacity: Authorized Signatory
Address for notice:
2882 Sand Hill Road, Suite 150,
Menlo Park, CA 94025
USA
Attn: John Fisher
Tel:
Fax: 1-650-223-9233
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DRAPER FISHER JURVETSON EPLANET
PARTNERS GMBH & CO. KG
By: /s/ John Fisher
------------------------------------
Name: John Fisher
Capacity: Authorized Signatory
Address for notice:
2882 Sand Hill Road, Suite 150,
Menlo Park, CA 94025
USA
Attn: John Fisher
Tel:
Fax: 1-650-223-9233
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<PAGE>
DRAPER FISHER JURVETSON EPLANET
VENTURES L.P
By: /s/ John Fisher
------------------------------------
Name: John Fisher
Capacity: Authorized Signatory
Address for notice:
2882 Sand Hill Road, Suite 150,
Menlo Park, CA 94025
USA
Attn: John Fisher
Tel:
Fax: 1-650-223-9233
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MILESTONE DIGITAL MEDIA HOLDINGS
LIMITED
By: /s/ Yunli Lou
------------------------------------
Name: Yunli Lou [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Unit 1805, Minfang Tower
593 Fuxing Road
Shanghai China
Attn: Yunli Lou [CHINESE CHARACTERS]
Tel:
Fax: 86-21-24028398
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VENTURE TDF TECHNOLOGY FUND III L.P.
By: /s/ Tina Ju
------------------------------------
Name: Tina Ju
Capacity: Authorized Signatory
Address for notice:
2102 China Merchants Tower
161 East Lujiazui Road
Shanghai, China
Attn: Tina Ju
Tel:
Fax: 86-21-52400078
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SPRINGBOARD-HARPER TECHNOLOGY
FUND (CAYMAN) LTD.
By: /s/ Peter Liu
------------------------------------
Name: Peter Liu [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
806 IBM Tower
Pacific Century Place
2A Gonti Bei Lu
Chaoyang District
Beijing, China
Attn: Peter Liu [CHINESE CHARACTERS]
Tel:
Fax: 86-10-65391367
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SPRINGBOARD-HARPER TECHNOLOGY
FUND PTE LTD.
By: /s/ Peter Liu
------------------------------------
Name: Peter Liu [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
806 IBM Tower
Pacific Century Place
2A Gonti Bei Lu
Chaoyang District
Beijing, China
Attn: Peter Liu [CHINESE CHARACTERS]
Tel:
Fax: 86-10-65391367
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HANNIBAL INTERNATIONAL LIMITED
By: /s/ Peter Liu
-------------------------------------
Name: Peter Liu [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
806 IBM Tower
Pacific Century Place
2A Gonti Bei Lu
Chaoyang District
Beijing, China
Attn: Peter Liu [CHINESE CHARACTERS]
Tel:
Fax: 86-10-65391367
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INTERNATIONAL NETWORK CAPITAL
GLOBAL INVESTMENT LIMITED (BVI)
By: /s/ Peter Liu
-------------------------------------
Name: Peter Liu [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
806 IBM Tower
Pacific Century Place
2A Gonti Bei Lu
Chaoyang District
Beijing, China
Attn: Peter Liu [CHINESE CHARACTERS]
Tel:
Fax: 86-10-65391367
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CDH FM LIMITED
By: /s/ Wu Shang Zhi
------------------------------------
Name: Wu Shang Zhi [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
38/F Tower 1, Lippo Centre
89 Queensway
Hong Kong, PRC
Attn: Wu Shang Zhi [CHINESE CHARACTERS]
Tel:
Fax: 86-852-22309898
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<PAGE>
CMF TECHNOLOGY FUND LTD.
By: /s/ Luke Lu
------------------------------------
Name: Luke Lu [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
Unit 115, Lippo Plaza,
No. 222, Huaihai Zhong Lu,
Shanghai, PRC
Attn: Jun Shen
Tel:
Fax: 86-21-53965530
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SNOW HILL DEVELOPMENT LIMITED
By: /s/ [CHINESE CHARACTERS]
------------------------------------
Name: [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
9/F., China Merchants Building,
No. 152-155 Connaught Road Central,
Hong Kong
Attn: [CHINESE CHARACTERS]
Tel: 00852-25817888
Fax: 00852-25812833
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<PAGE>
SHANGHAI VENTURE CAPITAL (HONG
KONG) COMPANY LIMITED
By: /s/ Zhiyin Chen
------------------------------------
Name: Zhiyin Chen [CHINESE CHARACTERS]
Capacity: Authorized Signatory
Address for notice:
Unit A311
900 Yishan Road
Shanghai, China
Attn: Zhiyin Chen [CHINESE CHARACTERS]
Tel:
Fax: 86-21-54234177
Clawback Rights Agreement
S-2
<PAGE>
MULTIMEDIA PARK VENTURE CAPITAL LIMITED
By: /s/ Wei Yu
------------------------------------
Name: Wei Yu [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Wei Yu [CHINESE CHARACTERS]
Tel: 86-21-32124668
Fax: 86-21-52400958
Clawback Rights Agreement
S-2
<PAGE>
UNITED CHINA INVESTMENT LIMITED
By: /s/ Wei Yu
------------------------------------
Name: Wei Yu [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Wei Yu [CHINESE CHARACTERS]
Tel: 86-21-32124668
Fax: 86-21-52400958
Clawback Rights Agreement
S-2
<PAGE>
CHINA ALLIANCE INVESTMENT LIMITED
By: /s/ Wei Yu
------------------------------------
Name: Wei Yu [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Wei Yu [CHINESE CHARACTERS]
Tel: 86-21-32124668
Fax: 86-21-52400958
Clawback Rights Agreement
S-2
<PAGE>
POWERFUL TEAM ENERGY INVESTMENTS LIMITED
By: /s/ Lin Shou Kang
------------------------------------
Name: Lin Shou Kang
Capacity: Authorized Signatory
Address for notice:
Drake Chambers
P.O. Box 3321
Road Town, Tortola
British Virgin Islands
Attn: Lin Shou Kang
Tel:
Fax: 86-10-69406102
Clawback Rights Agreement
S-2
<PAGE>
JIANG NACHUN [CHINESE CHARACTERS]
By: /s/ Jian Nanchun [CHINESE CHARACTERS]
-------------------------------------
Name: Jian Nanchun [CHINESE CHARACTERS]
Capacity:
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: 86-21-5240022
Clawback Rights Agreement
S-2
<PAGE>
GS FOCUS 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
Clawback Rights Agreement
S-3
<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
Clawback Rights Agreement
S-3
<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
Clawback Rights Agreement
S-3
<PAGE>
3I ASIA PACIFIC 2004-06 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
Clawback Rights Agreement
S-3
<PAGE>
KTB/UCI CHINA VENTURES LIMITED
By: /s/ Wei Yu
-------------------------------------
Name: Wei Yu [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Wei Yu [CHINESE CHARACTERS]
Tel: 86-21-32124668
Fax: 86-21-52400958
Clawback Rights Agreement
S-3
<PAGE>
MAX WEALTH ENTERPRISES LIMITED
By: /s/ Nei Shen
------------------------------------
Name: Nei Shen [CHINESE CHARACTERS]
Capacity: Director
Address for notice:
8A, No. 2 Conduit Road, Mid Levels,
Hong Kong
Attn: Neil Shen [CHINESE CHARACTERS]
Tel: 852-2169-0911
Fax: 852-2169-0920
Clawback Rights Agreement
S-3
<PAGE>
JIANG NACHUN [CHINESE CHARACTERS]
By: /s/ Jian Nanchun [CHINESE CHARACTERS]
-------------------------------------
Name: Jian Nanchun [CHINESE CHARACTERS]
Capacity:
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: 86-21-5240022
Clawback Rights Agreement
S-4
<PAGE>
SCHEDULE A - INVESTORS
1. GS Focus Holding Limited, an exempted company organized and existing under
the laws of Cayman Islands
2. 3i Group plc, a company organized and existing under the laws of England
3. 3i Asia Pacific Technology LP, a limited partnership duly organized and
existing under the laws of England
4. 3i Asia Pacific 2004-06 LP, a limited partnership duly organized and
existing under the laws of England
5. KTB/UCI China Ventures I Limited, an international business company
organized and existing under the laws of the British Virgin Islands
6. Max Wealth Enterprises Limited, an international business company
organized and exiting under the laws of the British Virgin Islands
Clawback Rights Agreement
Schedule A
1
<PAGE>
SCHEDULE B - EXISTING PREFERRED HOLDERS
1. United China Investment Limited, an international business company
organized and existing under the laws of the British Virgin Islands
2. China Alliance Investment Limited, an international business company
organized and existing under the laws of the British Virgin Islands
3. SB China Holdings Pte Ltd., a company organized and existing under the
laws of Sigapore
4. Shanghai Venture Capital (Hong Kong) Co., Ltd., a company organized and
existing under the laws of Hong Kong
5. Multimedia Park Venture Capital Limited, an international business company
organized and existing under the laws of the British Virgin Islands
6. Snow Hill Developments Limited, an international business company
organized and existing under the laws of the British Virgin Islands
7. CMF Technology Fund I Ltd., a company organized and existing under the
laws of Cayman Islands
8. Draper Fisher Jurvetson ePlanet Ventures L.P., a company organized and
existing under the laws of Cayman Islands
9. Draper Fisher Jurvetson ePlanet Ventures GmbH & Co. KG, a company
organized and existing under the laws of Germany
10. Draper Fisher Jurvetson ePlanet Partners Fund, LLC, a limited liability
company organized and existing under the laws of the State of California
11. CDH FM Limited, an international business company organized and existing
under the laws of the British Virgin Islands
12. International Network Capital Global Fund, a company organized and
existing under the laws of Cayman Islands
13. International Network Capital Investment Limited (BVI), an international
business company organized and existing under the laws of the British
Virgin Islands
14. Hannibal International Limited, a company organized and existing under the
laws of Cayman Islands
Clawback Rights Agreement
Schedule A
1
<PAGE>
15. Springboard-Harper Technology Fund Pte Ltd., a company organized and
existing under the laws of Cayman Islands
16. Springboard-Harper Technology Fund (Cayman) Ltd., a company organized and
existing under the laws of Cayman Islands
17. Venture TDF Technology Fund III L.P, a company organized and existing
under the laws of Cayman Islands
18. Milestone Digital Media Holding Ltd., an international business company
organized and existing under the laws of the British Virgin Islands
19. Elite Select Group Limited, an international business company organized
and existing under the laws of the British Virgin Islands
20. Farmac Holdings Limited, an international business company organized and
existing under the laws of the British Virgin Islands
21. Powerful Team Energy Investments Limited, an international business
company organized and existing under the laws of the British Virgin
Islands
3