Share Purchase Agreement - Xinhua Finance Media Ltd. and Patriarch Partners Media Holdings LLC
EXECUTION COPY
SHARE PURCHASE AGREEMENT
FOR UP TO 21,873,235 PREFERRED SHARES
BETWEEN
XINHUA FINANCE MEDIA LIMITED
AS COMPANY,
AND
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC
AS PURCHASER,
DATED AS OF MARCH 16, 2006
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TABLE OF CONTENTS
Section 1. Definitions.................................................... S-1
Section 2. Authorization and Sale of Preferred Shares; Use of Proceeds.... 10
(a) Authorization of the Shares........................................ 10
(b) Sale of Securities................................................. 10
(c) Purchase Price..................................................... 10
(d) Use of Proceeds.................................................... 10
Section 3. Closing Date; Delivery......................................... 11
(a) Closing Date....................................................... 11
(b) Delivery........................................................... 11
Section 4. Representations and Warranties of the Company.................. 11
(a) Corporate Status; Corporate Authorization.......................... 11
(b) Execution and Binding Effect....................................... 11
(c) Properties......................................................... 11
(d) [Reserved]......................................................... 12
(e) Laws............................................................... 12
(f) Litigation......................................................... 12
(g) Governmental Approvals and Filings................................. 12
(h) Absence of Conflicts............................................... 13
(i) [Reserved]......................................................... 13
(j) Partnerships, Etc.................................................. 13
(k) Fiscal Year........................................................ 13
(l) Subsidiaries....................................................... 13
(m) Capitalization..................................................... 13
(n) Material Misstatements and Omissions............................... 14
(o) Solvency........................................................... 14
(p) Labor Practices.................................................... 14
(q) Employee Benefits.................................................. 15
(r) Environmental Matters.............................................. 15
(s) Insurance.......................................................... 16
(t) Intellectual Property.............................................. 16
(u) Absence of Accelerated Redemption Event............................ 16
(v) Absence of Other Defaults.......................................... 16
(w) Material Contracts................................................. 16
(x) Brokerage Fees..................................................... 16
(y) [Reserved]......................................................... 17
(z) Taxes.............................................................. 17
(aa)USA Patriot Act; Etc............................................... 17
(bb)OFAC............................................................... 18
(cc)No Material Adverse Change......................................... 18
(dd)Financial Projections.............................................. 18
(ee)Indebtedness....................................................... 18
(ff)Liens.............................................................. 18
(gg)Media Assets....................................................... 18
(hh)Internal Control Agreements........................................ 19
(ii)Investment Representation.......................................... 19
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Section 5. Representations and Warranties of the Purchasers............... 19
(a) Organization and Qualification..................................... 19
(b) Authorization...................................................... 19
(c) Power and Authority................................................ 19
(d) Purchase Entirely for Own Account.................................. 19
(e) Accredited Investor................................................ 19
(f) Investment Experience.............................................. 19
(g) Disclosure of Information.......................................... 20
(h) Legends............................................................ 20
(i) Compliance with Laws............................................... 20
(j) Acknowledgement of Risks........................................... 20
Section 6. Pre-closing Covenants.......................................... 21
(a) Conduct of Business................................................ 21
(b) Cooperation........................................................ 22
(c) No Solicitation of Transaction..................................... 22
(d) Access to the Company.............................................. 22
(e) Notification of Breach of Representations, Warranties and
Covenants.......................................................... 22
(f) Changes in Capital Stock........................................... 22
(g) Litigation Developments............................................ 23
(h) No Shopping........................................................ 23
(i) Reserved Shares.................................................... 23
Section 7. Conditions to Closing.......................................... 23
(a) Conditions to Purchasers' Obligations.............................. 23
(b) Conditions to Purchasers' Obligations.............................. 24
(c) Conditions to Obligations of the Company........................... 25
Section 8. Termination.................................................... 25
(a) Termination At Any Time............................................ 25
(b) Termination Prior to Initial Closing............................... 25
(c) Termination of Purchase of Additional Shares....................... 26
(d) Effect of Termination.............................................. 26
Section 9. Miscellaneous.................................................. 26
(a) Governing Law...................................................... 26
(b) Submission to Jurisdiction......................................... 26
(c) Survival........................................................... 27
(d) Successors and Assigns............................................. 27
(e) Entire Agreement; Amendment........................................ 27
(f) Notices............................................................ 27
(g) Expenses........................................................... 28
(h) Delays or Omissions................................................ 28
(i) Severability of this Agreement..................................... 28
(j) Finder's Fees...................................................... 28
(k) Titles and Subtitles............................................... 28
(l) Counterparts....................................................... 29
(m) Gender............................................................. 29
(n) Public Announcement................................................ 29
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EXHIBITS
Initial Exhibit
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A Schedule of Purchasers
B [Reserved]
C Schedule of Exceptions
D Amended and Restated Articles of Association of the Company
E Form of Opinion of Company's Counsel
ANNEXES
Initial Exhibit
------- -------
A Media Assets
B Newspaper Assets
C Subsidiaries
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT ("Agreement") is made and entered into as of
the 16th day of March, 2006, by and between XINHUA FINANCE MEDIA LIMITED, a
Cayman Islands limited company (the "Company"), and PATRIARCH PARTNERS MEDIA
HOLDINGS, LLC, a Delaware limited liability company (the "Purchaser").
THE PARTIES AGREE AS FOLLOWS:
Section 1. Definitions. For the purposes of this Agreement, the following
terms have the meanings set forth below:
"Accelerated Redemption Event" means "Accelerated Redemption Event" as
defined in the Articles.
"Action" against a Person means an action, suit, litigation,
arbitration, investigation, complaint, contest, hearing, inquiry, inquest,
audit, examination or other proceeding threatened or pending against or
affecting the Person or its property, whether civil, criminal,
administrative, investigative or appellate, in law or equity before any
arbitrator or Governmental Body.
"Additional Shares" has the meaning set forth in Section 2(b) hereof.
"Affiliate" of a Person means any other Person (a) that directly or
indirectly controls, is controlled by or is under common control with, the
Person or any of its Subsidiaries, (b) that directly or indirectly
beneficially owns or holds 5% or more of any class of equity Security or
other similar interests of the Person or any of its Subsidiaries or (c) 5%
or more of the equity Securities of which is directly or indirectly
beneficially owned or held by the Person or any of its Subsidiaries. For
purposes of this definition, the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of
voting securities, by contract, agreement or otherwise. Notwithstanding the
foregoing, neither the Purchaser nor any Affiliate of the Purchaser shall
be an Affiliate of the Parent, the Company or any of their Subsidiaries.
"Articles" has the meaning set forth in Section 2(a) hereof.
"Authorized Officer" means, as applied to any Person, any individual
holding the position of chairman of the board (if an office), chief
executive officer, president or one of its vice presidents (or the
equivalent thereof), and such Person's chief financial officer or
treasurer.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
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"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to
purchase or other arrangements or rights to acquire any of the foregoing.
"Closing" has the meaning set forth in Section 2(b) hereof.
"Closing Date" has the meaning set forth in Section 3(a) hereof.
"Collateral" means "Collateral" as defined under the Security
Agreement.
"Collateral Documents" means the Security Agreement, the Pledge
Agreement, and all other instruments, documents and agreements delivered by
the Company or any Covered Subsidiary pursuant to this Agreement or any of
the other Equity Documents (including, without limitation, all UCC
financing statements) in order to grant to the Purchaser a Lien on any
property of the Company or any Covered Subsidiary as security for the
Obligations.
"Company Common Shares" means common shares in the capital of the
Company, par value $0.001.
"Consents" means any approval, consent, authorization or order of,
notice to or registration or filing with, or any other action by, any
Governmental Body or other Person.
"Credit Agreement" means the credit agreement dated as of the date
hereof among the Company, the Purchasers, the Guarantors named therein and
the Agent named therein.
"Credit Document" means "Credit Document" as defined under the Credit
Agreement.
"Covered Subsidiary" means (i) Ming Shing International Limited, a
British Virgin Islands company, (ii) Upper Will Enterprises Limited, a
British Virgin Islands company and (iii) Active Advertising Agency Limited,
a Hong Kong company.
"Dollars", "dollars" and the sign "$" mean the lawful money of the
United States of America.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the PRC.
"Environmental Laws" means all national, state, regional, provincial,
and local laws (including without limitation common law), statutes,
regulations and rules whether now or hereinafter in effect relating in any
way to the environment, the preservation or
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reclamation of natural resources, the management, release or threatened
release of any Hazardous Material or health and safety matters.
"Environmental Liability" means any actual, alleged or contingent
liability or obligations of the Company or any of its Subsidiaries directly
or indirectly resulting from or based on (a) the violations or alleged
violations of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material,
(c) exposure to any Hazardous Material, (d) the release or threatened
release of any Hazardous Material into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with any of the foregoing.
"Environmental Permits" means all permits, licenses, authorizations,
registrations and other governmental consents required by applicable
Environmental Laws for the use, storage, treatment, transportation,
release, emission and disposal of raw materials, by-products, wastes and
other substances used or produced by or otherwise relating to the
operations of the Company and any of its Subsidiaries.
"Equity Documents" means "Equity Documents" as defined in the
Articles.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"Equity Security" of any Person means any capital stock or other
ownership or equity interest or profit participation or similar right with
respect to such Person (including any partnership or membership interest,
any stock appreciation, phantom stock or similar right or plan, and any
note or debt security having or containing equity or profit participation
features), or any option, warrant or other security or right which is
directly or indirectly convertible into or exercisable or exchangeable for
any other Equity Security of such Person.
"Financials" means, with respect to any Person for any period, the
balance sheet of such Person as at the end of such period, and the related
statement of income and expense and statement of cash flow of such Person
for such period, each setting forth in comparative form the figures for the
previous comparable fiscal period, all in reasonable detail and prepared in
accordance with GAAP.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means International Financial Reporting Standards as in effect
from time to time, consistently applied throughout the periods to which
reference is made.
"Governmental Body" means any agency, bureau, commission, court,
department, official, political subdivision, tribunal or other
instrumentality of any administrative, judicial, legislative, executive,
regulatory, police or taxing authority of any government,
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whether supranational, national, federal, state, regional, provincial,
local, domestic or foreign.
"Hazardous Materials" means any hazardous or toxic substance, waste,
contaminant, pollutant, gas or material, including, without limitation,
radioactive materials, oil, petroleum and petroleum products and
constituents thereof, which are regulated under any Environmental Law,
including, without limitation, any substance, waste or material which is
(a) designated a "pollutant", "hazardous substance", "extremely hazardous
substance" or "toxic chemical" under any Environmental Law, or (b)
regulated in any way under the Regulations of any state where the Company
or any of its Subsidiaries conducts its business or owns any real property
or has any leasehold or in which any Relevant Property is located.
"HK Dollar" and the sign "HK$" mean the lawful money of Hong Kong.
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China.
"Initial Closing" set forth in Section 2(b) hereof.
"Initial Closing Date" has the meaning set forth in Section 3(a)
hereof.
"Initial Purchase Price" has the meaning set forth in Section 2(c)
hereof.
"Initial Shares" has the meaning set forth in Section 2(b) hereof.
"Indebtedness" means, with respect to any Person, without duplication,
the following: (i) all indebtedness of such Person for borrowed money, (ii)
all obligations of such Person for the deferred purchase price of property
or services other than accounts payable and accrued liabilities that would
be classified as current liabilities under GAAP which payables and expenses
are incurred in respect of property or services purchased in the ordinary
course of business, (iii) all obligations of such Person evidenced by
notes, bonds, debentures or similar borrowing or securities instruments,
(iv) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person, (v) all obligations of such Person as
lessee under Capital Leases, (vi) all obligations of such Person in respect
of banker's acceptances and letters of credit, (vii) all obligations of
such Person secured by Liens on the assets and property of such Person,
(viii) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any capital stock or other
ownership or profit interest in such Person or any other Person or any
warrants, rights or options to acquire such capital stock, (ix) all
obligations of such Person in respect of any guaranty by such Person of any
obligation of another Person of the type described in clauses (i) through
(viii) of this definition and (x) all obligations of another Person of the
type described in clauses (i) through (ix) secured by a Lien on the
property or assets of such Person (whether or not such Person is otherwise
liable for such obligations of such other Person).
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"Intellectual Property" means, collectively, all copyrights, all
patents and all trademarks, together with: (a) all inventions, processes,
production methods, proprietary information, know-how and trade secrets;
(b) all licenses or user or other agreements granted to the Company or any
of its Subsidiaries with respect to any of the foregoing, in each case
whether now or hereafter owned or used including the licenses or other
agreements with respect to any Collateral; (c) all customer lists,
identification of suppliers, data, plans, blueprints, specifications,
designs, drawings, recorded knowledge, surveys, engineering reports, test
reports, manuals, materials standards, processing standards, performance
standards, catalogs, computer and automatic machinery software and
programs; (d) all field repair data, sales data and other information
relating to sales or service of products now or hereafter manufactured; (e)
all accounting information and all media in which or on which any
information or knowledge or data or records may be recorded or stored and
all computer programs used for the compilation or printout of such
information, knowledge, records or data; and (f) all causes of action,
claims and warranties, in each case, now or hereafter owned or acquired by
the Company or any of its Subsidiaries in respect of any of the items
listed above.
"Internal Control Agreement" means (i) any appointment or
indemnification arrangement or agreement with a natural Person, who is a
citizen of the PRC, designated by the Parent or the Company or any
Affiliate or Subsidiary of the Parent or the Company to act as nominee
shareholder and legal representative of any Domestic Subsidiary, and any
action, arrangement, declaration, or agreement undertaken by such Person,
or caused to be undertaken by such Person, in connection with the
fulfillment of such role, including, without limitation, the acquisition of
any beneficial interest or the holding of record in the Securities
(including Capital Stock) of such Domestic Subsidiary and the execution,
either with the Parent, the Company, Affiliate or Subsidiary of the Parent
or the Company or any other third party whether or not affiliated with the
Parent or the Company, of any secured promissory note, equity pledge
agreement, equity purchase option agreement, subrogation agreement,
declaration of waiver of pre-emption rights, and declaration of waiver of
spousal communal rights or (ii) any arrangement or agreement (including,
without limitation, any consulting or service arrangements or agreements)
pursuant to which the Company or any Subsidiary of the Company indirectly
receives the economic benefit of revenue generated by any Media Asset.
"Investment" means (a) any direct or indirect purchase or other
acquisition by the Company or any of its Subsidiaries of, or of a
beneficial interest in, any of the Securities (including any Capital Stock)
of any other Person, (b) any direct or indirect redemption, retirement,
purchase or other acquisition for value, by the Company or any of its
Subsidiaries from any Person, of any Capital Stock of such Person, and (c)
any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
the Company or any of its Subsidiaries to any other Person, including all
Indebtedness and accounts receivable from that other Person that are not
current assets or did not arise from sales to that other Person in the
ordinary course of business. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write ups,
write downs or write offs with respect to such Investment.
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"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any
successor statute.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form;
provided, in no event shall any corporate Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a party.
"Knowledge" means, with respect to the Company, the knowledge of the
Company's Authorized Officers, after reasonable inquiry by such Authorized
Officers; provided, however, with respect to Section 4 (n) herein,
"Knowledge" means the knowledge of the Company's (i) Authorized Officers or
(ii) any employees or consultants of the Company or any Covered Subsidiary
who participated in the acquisitions of the Media Assets, in each case
after reasonable inquiry by such Person.
"Leasehold Property" means any leasehold interest of the Company or
any Covered Subsidiary as lessee under any lease of real property.
"Lien" means any encumbrance, mortgage, pledge, hypothecation, charge,
assignment, lien, restriction or other security interest of any kind
securing any obligation of any Person.
"Loans" means "Loans" as defined in the Credit Agreement.
"Material Adverse Effect" means any (i) material adverse effect on the
business, operations, properties, assets or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole that may
affect the ability of the Company or any Covered Subsidiary to perform its
material obligations hereunder or under of any of the Equity Documents,
(ii) material impairment of the ability of the Company or the Covered
Subsidiaries to perform their obligations hereunder or under of any of the
other Equity Documents, (iii) material adverse effect on the legality,
validity, binding effect or enforceability of the Equity Documents against
the Company or any Covered Subsidiary or (iv) material adverse effect on
the rights or remedies available to the Purchasers under this Agreement or
any Equity Document, excluding any written waivers or releases by the
Purchasers.
"Material Contracts" means, with respect to any Person, each contract
listed on Schedule 4(w), each contract which is a replacement or a
substitute for any contract listed on such Schedule and each other contract
to which such Person is a party which is material to the business,
financial condition, operations, performance, properties or reasonably
foreseeable business prospects of such Person, in each case where the
aggregate consideration payable is in excess of $100,000.
"Media Assets" means the assets set forth in Annex A as "Media
Assets".
"Newspaper Assets" means the assets set forth in Annex B as "Newspaper
Assets".
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"Obligations" means all amounts owed and all other obligations and
liabilities of the Company and each Covered Subsidiary from time to time
owed to the Purchaser, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Agreement or any other Equity Document.
"Parent" means Xinhua Finance Limited.
"Parent Redemption Shares" means "Parent Redemption Shares" as defined
in the Articles.
"Permitted Indebtedness" means (i) Indebtedness arising under the
Credit Documents, (ii) Indebtedness of the Company or any Subsidiary
existing as of the date hereof set forth on the Schedule of Exceptions,
(iii) Indebtedness in respect of taxes or other governmental charges
contested in good faith by appropriate proceedings and for which the
Company or any Covered Subsidiary has made appropriate reserves, (iv)
Indebtedness of the Company or any Covered Subsidiary incurred under
Capital Leases entered into in the ordinary course of business in an
aggregate amount not to exceed $500,000 on any date of determination, (v)
Indebtedness in RMB which is entirely secured by a Dollar deposit and which
is incurred solely for the purpose of converting Dollars into RMB required
for working capital purposes in the PRC, or (vi) trade or other similar
Indebtedness on normal commercial terms incurred in the ordinary course of
business in an aggregate amount not to exceed $500,000 on any date of
determination and payable within ninety (90) days.
"Permitted Liens" means (i) Liens securing the Obligations, (ii) Liens
securing taxes or other governmental charges not yet due or due but
contested in good faith by appropriate proceedings and for which the
Company or any of its Covered Subsidiary has made appropriate reserves (so
long as the holder of any such Lien is not taking any active steps to
enforce or foreclose on such Lien), (iii) Liens of landlords, carriers,
warehousemen, mechanics and materialmen and other similar statutory Liens
arising in the ordinary course of the Company and such Covered Subsidiary's
business, less than 120 days old as to obligations not yet due or due but
contested in good faith by appropriate proceedings and for which the
Company and such Covered Subsidiary has made appropriate reserves (so long
as the holder of any such Lien is not taking any active steps to enforce or
foreclose on such Lien), (iv) easements, rights of way, zoning restrictions
and similar minor Liens which individually and in the aggregate do not have
a Material Adverse Effect on the Company and/or any Covered Subsidiary, (v)
Liens securing obligations arising under the Credit Documents.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures,
associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities,
other legal entities and Governmental Bodies.
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"Pledge Agreement" means the Pledge Agreement and Irrevocable Proxy,
dated as of the date hereof, among the Company, the Covered Subsidiaries
and the Purchaser.
"PRC" means the People's Republic of China excluding Hong Kong, Macau
Special Administrative Region and Taiwan.
"Preferred Shares" has the meaning set forth in Section 2(a) hereof.
"Projections" has the meaning set forth in Section 4(dd) hereof.
"Purchase Price" has the meaning set forth in Section 2(c) hereof.
"Regulation" means each applicable law, rule, regulation, order,
guidance or recommendation (or any change in its interpretation or
administration) by any Governmental Body, central bank or comparable agency
and any request or directive (whether or not having the force of law) of
any of those Persons and each judgment, injunction, order, writ, decree or
award of any Governmental Body, arbitrator or other Person.
"Relevant Property" means, for the Company and/or any of its
Subsidiaries, all sites, facilities, locations, real property and
leaseholds (a) presently or formerly owned, leased, used or operated by the
Company or any of its Subsidiaries (whether or not such properties are
currently owned, leased, used or operated by the Company or any of its
Subsidiaries), (b) at which any Hazardous Material has been transported,
disposed, treated, stored or released by the Company or any of its
Subsidiaries, or (c) that are directly adjacent to any sites, facilities,
locations, real property or leaseholds presently or formerly owned, leased,
used or operated by the Company or any of its Subsidiaries.
"RMB" means the lawful money of the PRC.
"Sanctioned Entity" shall mean (i) the government of or an agency of
the government of, (ii) an organization directly or indirectly controlled
by, or (iii) a person resident in a country that is subject to a sanctions
program identified on the list maintained by OFAC and available at
http://www.ustreas.gov/offices/enforcement/ofac/programs/, or as otherwise
published from time to time as such program may be applicable to such
agency, organization or person.
"Sanctioned Person" shall mean a person named on the list of Specially
Designated Nationals or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as
otherwise published from time to time.
"Schedule of Exceptions" means the Schedule of Exceptions attached
hereto as Exhibit C and delivered to the Purchasers prior to the execution
of this Agreement.
"Second Closing" has the meaning set forth in Section 2(b) hereof.
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"Securities" means any stock, shares, limited liability company
membership interests, partnership interests, voting trust certificates,
certificates of interest or participation in any profit sharing agreement
or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as "securities"
or any certificates of interest, shares or participations in temporary or
interim certificates for the purchase or acquisition of, or any right to
subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the United States Securities Act of 1933, as
amended from time to time, and any successor statute.
"Securities and Exchange Commission" means the United States
Securities and Exchange Commission, including any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Security Agreement" means the Security Agreement, dated as of the
date hereof, the Company, the Covered Subsidiaries and the Purchaser.
"Shares" has the meaning set forth in Section 2(b) hereof.
"Solvent" means, with respect to any Person, that as of the date of
determination both (a)(i) the sum of such Person's debt (including
contingent liabilities) does not exceed all of its property, at a fair
valuation, (ii) the present fair saleable value of the property of such
Person is not less than the amount that will be required to pay the
probable liabilities on such Person's then existing debts as they become
absolute, and matured, (iii) such Person's capital is not unreasonably
small in relation to its business or any contemplated or undertaken
transaction, and (iv) such Person does not intend to incur, or believe (nor
should it reasonably believe) that it will incur, debts beyond its ability
to pay such debts as they become due, and (b) such Person is "solvent"
within the meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"Subsequent Closing Date" has the meaning set forth in Section 3(a)
hereof.
"Subsequent Purchase Price" has the meaning set forth in Section 2(c)
hereof.
"Subsidiary" means, (i) with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares
of stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the Person or
Persons (whether directors, managers, trustees or other Persons performing
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similar functions) having the power to direct or cause the direction of the
management and policies thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof and (ii) the entities
listed on Annex C hereto and their Subsidiaries as defined in clause (i) of
this definition.
"Tax" means any present or future tax, levy, impost, duty, assessment,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed.
"WFOE" means a direct or indirect wholly owned Domestic Subsidiary of
the Company.
Section 2. Authorization and Sale of Preferred Shares; Use of Proceeds.
(a) Authorization of the Shares. At each Closing (as defined in
Section 2(b), the Company's Amended and Restated Articles of Association
(the "Articles"), will authorize twenty-two million (22,000,000) Preferred
Shares, par value $0.001 ("Preferred Shares"). The Preferred Shares will
have the rights, privileges and preferences set forth in the Articles of
Association (including all schedules thereto) attached as Exhibit D hereto.
(b) Sale of Securities. Subject to the terms and conditions hereof,
each Purchaser, severally and not jointly, hereby agrees to purchase on a
pro rata basis from the Company, up to the number of Preferred Shares set
forth for such Purchaser under the heading "Maximum Number of Preferred
Shares to be Purchased" on Exhibit A hereto (the "Shares"). At the closing
of the purchase and sale of the Initial Shares (the "Initial Closing"),
each Purchaser will purchase the number of Shares set forth for such
Purchaser under the heading "Initial Shares Purchased" on Exhibit A hereto
(the "Initial Shares"). At the subsequent closing of the purchase and sale
of additional Shares (the "Second Closing" and together with the Initial
Closing, each a "Closing"), each Purchaser will purchase the number of
Shares set forth for such Purchaser under the heading "Additional Shares
Purchased" on Exhibit A hereto (the "Additional Shares"). The obligation of
each Purchaser to purchase the respective number of shares assigned to it
on Exhibit A is several and not joint and none of the Purchasers shall be
obligated to purchase any Shares which any other Purchaser fails to
purchase.
(c) Purchase Price. The aggregate purchase price for the Initial
Shares shall be equal to sixty million dollars ($60,000,000) (the "Initial
Purchase Price"). The aggregate purchase price for the Additional Shares
shall be equal to twenty million dollars ($20,000,000) (the "Subsequent
Purchase Price" and together with the Initial Purchase Price, the "Purchase
Price").
(d) Use of Proceeds. The net proceeds from the sale of the Initial
Shares shall be used (x) for working capital and general corporate purposes
of the Company and its Subsidiaries, (y) to pay the costs and expenses
related to the transactions contemplated by the Equity Documents and (z) to
finance the purchase price of the Media Assets. The net
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proceeds from the sale of the Additional Shares shall be used to finance
the purchase price of the Newspaper Assets.
Section 3. Closing Date; Delivery.
(a) Closing Date. Each Closing of the purchase and sale of Shares
shall be held at the offices of Richards Spears Kibbe & Orbe LLP, One World
Financial Center, New York, NY 10281-1003 at such time and place to which
the Company and a majority of the Purchasers may agree (each, a "Closing
Date" and the Closing Date of the Initial Shares, the "Initial Closing
Date", and the Closing Date of the Additional Shares, the "Second Closing
Date").
(b) Delivery. At each Closing, the Company shall deliver to the
Purchasers certificates representing the Shares purchased at such Closing
against payment of the purchase price therefore by a cashier's check or by
wire transfer to the bank account of the Company. Each Closing is subject
to the conditions set forth in Section 7 of this Agreement.
Section 4. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Purchasers as of the date hereof and as of
each Closing Date that:
(a) Corporate Status; Corporate Authorization. Each of the Parent, the
Company and each of their Subsidiaries is duly organized, validly existing,
and in good standing under the laws of its jurisdiction of organization and
is duly qualified and in good standing in every other jurisdiction where it
is doing business except where the failure to so qualify does not have a
Material Adverse Effect on the Parent, the Company or such Subsidiaries,
and the execution, delivery and performance by the Company of the Equity
Documents (i) are within its authority, (ii) have been duly authorized, and
(iii) do not conflict with or contravene its constitutive documents. The
execution, delivery, performance of its obligations, and exercise of its
rights under the Equity Documents, including, without limitation, the sale
of the Shares under this Agreement, the issuance of the Parent Redemption
Shares (if any), and the issuance of Company Common Shares (if any), (i) do
not require any Consents that have not been obtained and (ii) are not and
will not be in conflict with or prohibited or prevented by (A) any
Regulation or (B) any corporate governance document, corporate minute or
resolution of the Parent, the Company or any Covered Subsidiary or (C) any
instrument, agreement or provision thereof, in each case binding on any of
them or affecting any of their property.
(b) Execution and Binding Effect. Upon execution and delivery thereof,
each Equity Document which it is a party thereto shall constitute the
legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws relating to the
enforcement of creditors' rights generally and by general equitable
principles.
(c) Properties.
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(i) The Company and each of its Subsidiaries has good and
marketable title to all material real property owned or purported to
be owned by it, in each case free of all Liens other than the
Permitted Liens.
(ii) The Company and each of its Subsidiaries is, or when leases
creating Leasehold Properties are executed will be, lawfully possessed
of a valid and subsisting leasehold estate in and to its Leasehold
Properties which it purports to lease free and clear of all Liens
other than the Permitted Liens.
(iii) The Company and each of its Subsidiaries enjoys, and will
enjoy, peaceful and undisturbed possession of, or a license to use,
all property (subject only to the Permitted Liens) that are necessary
for their respective businesses.
(iv) Set forth on the Schedule of Exceptions is a list, as of the
date hereof, of all real property held, or, to the Knowledge of the
Company, planned to be held, by the Company, each Covered Subsidiary
and their Foreign Subsidiaries, indicating in each case whether the
respective property is (or is expected to be) owned or leased, the
identity of the owner or lessee, the location of the respective
property, the approximate value of such property, in the case of real
property owned and, in the case of property not yet owned or leased,
the estimated date of acquisition or leasing (if known to the Company
on the date hereof).
(v) The Company and each of its Subsidiaries owns, or is licensed
or otherwise has the right to use the Intellectual Property necessary
to own and operate its properties and to carry on its business as
presently conducted and presently planned to be conducted without
conflict with the rights of others, except for such instances of
non-compliance that, individually or in the aggregate, do not have a
Material Adverse Effect.
(d) [Reserved]
(e) Laws. The Company and each of its Subsidiaries is in material
compliance with all Regulations.
(f) Litigation. There are no legal or other proceedings or
investigations pending or threatened against the Company or any of its
Subsidiaries before any court, tribunal or regulatory authority which
would, if adversely determined, alone or together, have a Material Adverse
Effect on the Company or such Subsidiary.
(g) Governmental Approvals and Filings. No approval, order, consent,
authorization, certificate, license, permit or validation of, or exemption
or other action by, or filing, recording or registration with, or notice
to, any Governmental Body (collectively, "Governmental Action") is or will
be necessary in connection with the execution and delivery of this
Agreement or any other Equity Document, consummation by the Company of the
transactions herein or therein contemplated, or performance of or
compliance with the terms and conditions hereof or thereof. The Company is
not subject to any statute or regulation limiting the Company's ability to
issue Preferred Shares on
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the terms set forth herein. Neither the Company nor any Covered Subsidiary
is an "investment company" or a company "controlled" by an "investment
company", with the meaning of the United States Investment Company Act of
1940, as amended.
(h) Absence of Conflicts. The execution and delivery by the Company of
this Agreement and each other Equity Document to which it is a party and
performance by it hereunder and thereunder will not violate any law and
will not conflict with or result in a breach of any order, writ,
injunction, resolution, decree or other similar document or instrument of
any court or Governmental Body or its certificate of incorporation or
by-laws or similar constituent documents or create (with or without the
giving of notice or lapse of time, or both) a default under or breach of
any material agreement, bond, note or indenture, in each case to which it
is a party (by successor in interest or otherwise), or by which it is bound
or any material portion of its properties or assets is affected, or, except
under the Collateral Documents, result in the imposition of any Lien (other
than Permitted Liens) of any nature whatsoever upon any of the properties
or assets owned by or used in connection with the business of the Company
or any of its Subsidiaries.
(i) [Reserved]
(j) Partnerships, Etc. Neither the Company nor any Covered Subsidiary
is a partner (general or limited) of any partnership, is a party to any
Joint Venture or owns (beneficially or of record) any equity or similar
interest in any similar Person (including, without limitation, any interest
pursuant to which the Company or such Covered Subsidiary has or may in any
circumstance have an obligation to make capital contributions to, or be
generally liable for or on account of the liabilities, acts or omissions of
such other Person).
(k) Fiscal Year. The fiscal year of the Company and its Subsidiaries
begins on January 1 of each calendar year and ends on December 31 of each
calendar year.
(l) Subsidiaries. The Schedule of Exceptions sets forth a true,
correct and complete list, as of each Closing Date, of the Company and its
Subsidiaries, showing as to each entity (i) the jurisdiction of its
organization and jurisdictions in which it is qualified to do business,
(ii) the number of shares of Capital Stock of each class (A) authorized and
(B) issued and outstanding, (iii) the percentage of the outstanding shares
of Capital Stock of the Company and its Subsidiaries owned directly or
indirectly by the Company, (iv) the names of the record holders of each
class of outstanding shares of Capital Stock of the Company and its
Subsidiaries and the number of such shares held by each such holder, (v)
the number of shares of Capital Stock of the Company and its Subsidiaries
covered by all outstanding options, warrants, rights of conversion or
purchase, and similar rights, (vi) the percentage of those options,
warrants or rights owned directly or indirectly by the Company or such
other Persons, and (vii) the names of the record holders of such options,
warrants and rights and the number of such options, warrants and rights
held by each such holder.
(m) Capitalization.
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(i) On the date hereof, the authorized share capital of the
Company consists of (a) 980,000,000 Company Common Shares, of which
42,614,289 Company Common Shares are issued and outstanding,
16,404,926 Company Common Shares are reserved for issuance upon
conversion of the Shares and 2,734,154 Company Common Shares are
reserved for issuance in connection with the conversion of the Notes
issued under the Credit Agreement in the aggregate principal amount of
ten million dollars ($10,000,000) and interest payments due on the
Notes and (b) 22,000,000 Preferred Shares, none of which will be
issued and outstanding prior to the Initial Closing and 16,404,926
Preferred Shares of which will be issued and outstanding immediately
after the Initial Closing. As of each Closing, the Company shall not
be subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any of its Equity Securities, except
pursuant to this Agreement. As of each Closing, the Company shall not
have outstanding any Equity Securities, except as set forth above.
(ii) All outstanding shares of Capital Stock of the Company and
its Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable. Except pursuant to the Credit Documents and Equity
Documents, all outstanding shares of Capital Stock of the Company and
its Subsidiaries are owned, directly or indirectly, beneficially and
of record by the Company free and clear of all Liens and any options,
warrants and other rights. There are no statutory or contractual
shareholders preemptive rights or rights of refusal with respect to
the issuance of the Shares hereunder or the issuance of the Common
Stock upon conversion of the Shares. The Company has not violated any
applicable federal or state securities laws in connection with the
offer, sale or issuance of any of its capital stock, and, assuming all
of the Purchaser representations set forth in Section 5 are true, the
offer, sale and issuance of the Shares hereunder do not require
registration under the Securities Act or any applicable state
securities laws. To the best of the Company's knowledge, there are no
agreements between the Company's shareholders with respect to the
voting or transfer of the Company's capital stock or with respect to
any other aspect of the Company's affairs, except as set forth in this
Agreement.
(n) Material Misstatements and Omissions. To the Knowledge of the
Company, there are no facts pertaining to the Company or any Subsidiary,
their assets or properties or their businesses which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect and which have not been disclosed in this Agreement. To the
Knowledge of the Company, there is no information, as of each Closing Date,
which would contradict or is inconsistent in any material respect with any
representation or warranty of the Company contained in the Equity
Documents.
(o) Solvency. The Company and each of its Subsidiaries is Solvent.
(p) Labor Practices. Neither the Company nor any of its Subsidiaries
is engaged in any unfair labor practice that would have a Material Adverse
Effect. There is (i) no complaint of unfair labor practice pending against
the Company or any of its
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Subsidiaries or threatened against any of them before any Governmental Body
and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement that is so pending against the Company or
any of its Subsidiaries or threatened against any of them, (ii) no strike
or work stoppage in existence or threatened involving the Company or any of
its Subsidiaries that would have a Material Adverse Effect, and (iii) no
union representation question existing with respect to the employees of the
Company or any of its Subsidiaries, as the case may be, and no union
organization activity that is taking place, except (with respect to any
matter specified in clause (i), (ii) or (iii) above, either individually or
in the aggregate) such as is not reasonably likely to have a Material
Adverse Effect.
(q) Employee Benefits. Neither the Company nor any of its Subsidiaries
sponsors, maintains, contributes to or has any obligation under any
employee benefit plan, pension plan or any other plan maintained for
employees which are subject to ERISA or the Internal Revenue Code. Neither
the Company nor any of its Subsidiaries sponsors, maintains, contributes to
or has any obligation under any employee benefit plan, pension plan or any
other plan maintained for employees where the aggregate liability of the
Company, such Covered Subsidiary or such Subsidiary is in excess of
$100,000 per year. To its Knowledge, the Company and each Covered
Subsidiary is in compliance with all Regulations governing plans maintained
for employees in the jurisdictions in which they do business.
(r) Environmental Matters.
(i) Neither the Company nor any of its Subsidiaries has any
Environmental Liabilities at any Relevant Property, which individually
or in the aggregate, would have a Material Adverse Effect.
(ii) The Company and each of its Subsidiaries: (A) has operated
its business in compliance with all applicable Environmental Laws; (B)
has obtained all Environmental Permits required by applicable
Environmental Laws for the ownership and operation of its properties,
and all such Environmental Permits are in full force and effect or
such Person has made all appropriate filings for issuance or renewal
of such Environmental Permits; (C) is not aware of any acts,
omissions, events or circumstances that may interfere with or prevent
continued compliance with the Environmental Laws and Environmental
Permits referred to in the preceding clauses (A) and (B); (D) has not
received notice of any asserted or threatened claim, action, suit,
proceeding, hearing, investigation or request for information relating
to any environmental matter; and (E) has not received notice from any
Governmental Body that the Company or any of its Subsidiaries is a
potentially responsible party under any Environmental Law at any
disposal site containing Hazardous Materials, nor received any that
any lien under any Environmental Law against any property of the
Company or any Covered Subsidiary exists, in the case of each of
clauses (A) through (E), except for matters, which individually or in
the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
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(s) Insurance. The policies, binders or self-insurance programs for
fire, liability, product liability, workmen's compensation, vehicular and
other insurance currently held by or on behalf of the Company and each of
its Subsidiaries insure its material properties and business activities
against such losses and risks as are commensurate with customary industry
practice when entered into or renewed. To the Company's Knowledge, as of
the date hereof, all such policies, binders and self-insurance programs are
in full force and effect. As of the date hereof, neither the Company nor
any of its Subsidiaries has received notice from any insurer or agent of
such insurer that substantial capital improvements or other expenditures
are required. As of the date hereof, neither the Company nor any of its
Subsidiaries has received notice of cancellation of any material insurance
policy or binder.
(t) Intellectual Property. The Company and each of its Subsidiaries
owns, or is licensed or otherwise has the right to use, all the patents,
trademarks, service marks, names (trade, service, fictitious or otherwise),
copyrights, technology (including, without limitation, computer programs
and software), processes, data bases and other rights necessary to own and
operate its properties and to carry on its business as presently conducted
and presently planned to be conducted without conflict with the rights or
otherwise, except for such instances of non-compliance that, individually
or in the aggregate, would not have a Material Adverse Effect.
(u) Absence of Accelerated Redemption Event. No event has occurred and
is continuing and no condition exists which constitutes an Accelerated
Redemption Event.
(v) Absence of Other Defaults. Neither the Company nor any of its
Subsidiaries is in default under any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment to which it is a party (by
successor in interest or otherwise) or by which it is bound, or any other
agreement or other instrument by which any of the properties or assets
owned by it or used in the conduct of its business is affected, which
individually or in the aggregate would have a Material Adverse Effect. The
Company and each of its Subsidiaries has complied and is in compliance in
all respect with all laws, except for such instances of non-compliance
that, individually or in the aggregate, would not have a Material Adverse
Effect.
(w) Material Contracts. The Schedule of Exceptions sets forth a true,
correct and complete list and description of all the Material Contracts, as
of the date hereof, to which the Company or any of its Subsidiaries is a
party. Except as set forth on the Schedule of Exceptions, neither the
Company nor any of its Subsidiaries is in material default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of the Material Contracts, and no condition
exists which, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.
(x) Brokerage Fees. No broker's or finder's fee or commission will be
payable with respect to the execution and delivery of this Agreement and
the other Equity
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Documents, and no other similar fees or commissions will be payable by the
Company for any other services rendered to it ancillary to the transactions
contemplated herein.
(y) [Reserved]
(z) Taxes.
(i) The Company and each of its Foreign Subsidiaries has filed
all tax returns required by any jurisdiction in which the Company and
such Foreign Subsidiary does business and has not failed to pay any
material taxes, or interest and penalties relating thereto, on or
before the due dates thereof except for Taxes not yet due and except
for those the amount or validity of which is currently being contested
in good faith by appropriate proceedings. Except to the extent that
reserves therefor are reflected in the Financials, (i) there are no
material tax liabilities of the Company or any of its Foreign
Subsidiaries due or to become due for any tax year ended on or prior
to the date hereof relating to the Company or such Foreign Subsidiary,
which are not properly reflected in the consolidated financials of the
Company, and (ii) there are no material claims pending, proposed or
threatened against the Company or any Foreign Subsidiary for past
taxes, except those, if any, as to which proper reserves in accordance
with GAAP are reflected in such Financials.
(ii) Each Domestic Subsidiary of the Company and the Covered
Subsidiaries has filed all tax returns required by any jurisdiction in
which such Domestic Subsidiary does business and has not failed to pay
any material taxes, or interest and penalties relating thereto, on or
before the due dates thereof except for Taxes not yet due and except
for those the amount or validity of which is currently being contested
in good faith by appropriate proceedings and except where such
failure, individually or in the aggregate, would not have a Material
Adverse Effect. Except to the extent that reserves therefor are
reflected in the Financials, (i) there are no material tax liabilities
of any Domestic Subsidiary of the Company and the Covered Subsidiaries
due or to become due for any tax year ended on or prior to the date
hereof relating to such Domestic Subsidiary, which are not properly
reflected in the consolidated financials of the Company, and (ii)
there are no material claims pending, proposed or threatened against
any Domestic Subsidiary of the Company and the Covered Subsidiaries
for past taxes, except those, if any, as to which proper reserves in
accordance with GAAP are reflected in such Financials and, in each
case, except where such liabilities and claims, individually or in the
aggregate, would not have a Material Adverse Effect.
(aa) USA Patriot Act; Etc. The Company and each of its Subsidiaries is
in compliance in all material respects with the USA Patriot Act (Title III
of Pub.L. 107-56 (signed into law October 26, 2001)) (the "Patriot Act").
No part of the proceeds hereunder will be used, directly or indirectly, for
any payments to any governmental official or employee, political party,
official of a political party, candidate for political office or anyone
else acting in an official capacity, in order to obtain, retain or direct
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business or obtain any improper advantage, in violation of the federal
Foreign Corrupt Practices Act of 1977.
(bb) OFAC. None of the Parent, the Company, any Covered Subsidiary or
any Subsidiary or Affiliate of the Parent, the Company or any Covered
Subsidiary: (i) is a Sanctioned Person, (ii) has more than 10% of its
assets in Sanctioned Entities, or (iii) derives more than 10% of its
operating income from investments in, or transactions with Sanctioned
Persons or Sanctioned Entities. The proceeds hereunder will not be used and
have not been used to fund any operations in, finance any investments or
activities in, or make any payments to, a Sanctioned Person or a Sanctioned
Entity.
(cc) No Material Adverse Change. Since December 31, 2005, no event,
circumstance or change has occurred that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect.
(dd) Financial Projections. On and as of the date hereof, the
financial projections for the Company attached to the Schedule of
Exceptions for the period of Fiscal Year 2006 through and including Fiscal
Year 2008 (the "Projections") are (i) consistent with the organizational
and capital structure of the Company and its Subsidiaries described in
Sections 4(l) and 4(m) and set forth on the Schedule of Exceptions, (ii)
consistent with the ownership of Media Assets set forth on Annex A, and
(iii) based on good faith estimates and assumptions made by the management
of the Company (in light of circumstances known to management at such time)
and, as of the date hereof, management of the Company believed that the
Projections were reasonable and attainable in light of circumstances known
at such time and taken as a whole.
(ee) Indebtedness. The Schedule of Exceptions contains a complete and
correct listing of all Indebtedness of the Company and its Subsidiaries in
excess of $100,000 as of the date hereof. The Company and each of its
Subsidiaries has performed and is in compliance with all of the material
terms of such Indebtedness and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which
with notice or lapse of time or both would constitute such a default or
event of default on the part of the Company or any of its Subsidiaries
exists with respect to any such Indebtedness.
(ff) Liens. None of the properties and assets of the Company or any of
its Subsidiaries is subject to any Lien, except Permitted Liens. Neither
the Company nor any of its Subsidiaries has signed any mortgage, financing
statement or any security agreement authorizing any secured party
thereunder to file any financing statement, except in connection with any
Permitted Lien.
(gg) Media Assets. With respect to the Media Assets listed on Annex A
as having been acquired on or prior to the date hereof, the Company, or a
wholly owned direct or indirect Foreign Subsidiary of the Company, either
(i) has good and marketable title to such Media Assets or (ii) owns all
outstanding shares of Capital Stock of the WFOE which is party to an
Internal Control Agreement with respect to such Media Assets.
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(hh) Internal Control Agreements. Each of the Internal Control
Agreements that has been duly executed by the parties thereto is in full
force and effect and constitutes legal, valid and binding obligation of the
parties thereto, enforceable in accordance with its terms, except (1) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors'
rights generally (2) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable principle.
(ii) Investment Representation. Neither the offer nor the sale of the
Shares was accomplished by the publication of any advertisement or by any
general solicitation.
Section 5. Representations and Warranties of the Purchasers. Each
Purchaser, severally and not jointly and only with regard to itself, hereby
represents and warrants to the Company as of the date hereof and as of each
Closing Date as follows:
(a) Organization and Qualification. It is a person or a legal entity
duly organized and validly existing under the laws of its legal
registration jurisdiction.
(b) Authorization. It has taken all corporate or other action required
to authorize, and has duly authorized, the execution, delivery and
performance of this Agreement and upon due execution and delivery the same
will constitute legal, valid and binding obligations of the Purchaser,
enforceable in accordance with their respective terms.
(c) Power and Authority. It has full power and authority to make the
covenants and representations referred to herein and to subscribe for and
purchase the Shares and to execute, deliver and perform this Agreement.
(d) Purchase Entirely for Own Account. This Agreement is made with the
Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement the Purchaser hereby
confirms, that the Shares purchased hereunder, the Company Common Shares
issuable upon conversion of the Shares (if any) and the Parent Redemption
Shares issuable upon conversion of the Shares (if any) (collectively, the
"Securities") will be acquired for investment for the Purchaser's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that the Purchaser has no present
intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Purchaser further
represents that the Purchaser 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.
(e) Accredited Investor. It is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) under the Securities Act.
(f) Investment Experience. It is an investor in securities of
companies in the development stage and acknowledges that it is able to 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 the investment in the Shares.
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(g) Disclosure of Information. It and its advisors, if any, have been
furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the Shares which have
been requested by it or its advisors. It and its advisors, if any, have
been afforded the opportunity to ask questions of representatives of the
Company and have received answers to such questions, as it deems necessary
in connection with its decision to subscribe for the Shares.
(h) Legends. It understands that the certificates evidencing the
Shares shall bear the following or similar legend reflecting the
restrictions on the transfer of such Shares contained herein:
These Shares have not been registered under the Securities Act. They
may not be sold, offered for sale, transferred, pledged or hypothecated (A)
within the United States or to, or for the account or benefit of, any U.S.
person (as such term is defined in Regulation S under the Securities Act)
except pursuant to an effective registration statement under the Securities
Act or an applicable exemption from"
(i) Compliance with Laws. It has complied with all applicable laws of
its jurisdiction in connection with the purchase of the Shares and this
Agreement, including (i) the legal requirements within its jurisdiction for
the purchase of Shares, (ii) any foreign exchange restrictions applicable
to such purchase, (iii) any governmental or other consents that may need to
be obtained and (iv) the income tax and other consequences, if any, that
may be relevant to the purchase, holding, redemption, sale or transfer of
the Shares. The Purchaser's purchase and payment for and its beneficial
ownership of the Shares, will not violate any applicable securities or
other laws of the Purchaser's jurisdiction.
(j) Acknowledgement of Risks. It understands and accepts the following
risks that may be associated with the Company:
(i) No Operating History. An investment in the Company involves a
high degree of risk. The Company is a recently formed entity and
therefore has no operating history upon which investors can evaluate
its anticipated performance. The Company has been formed for the
purpose of developing, owning and operating media assets in the PRC;
however, certain staff (other than senior management) have yet to be
hired, and therefore the Company has no operating history or
historical financial information. Projections and forecasts regarding
the Company and its future performance are subject to a high level of
risk and uncertainty.
(ii) No Liquidity. Shares in the Company will not be registered
under any securities laws and therefore cannot be resold unless they
are subsequently registered under such laws or registration thereunder
is not required pursuant to an exemption from such registration or
otherwise. There is no public market for the Shares and none is
expected to develop for a number of years. An investment in the
Company is suitable only for sophisticated investors who do not
require immediate liquidity for their investment.
20
<PAGE>
(iii) Country Risk. Substantially all of the Company's assets
will be located in the PRC and enforcement of existing laws and
regulations may be uncertain and sporadic, and implementation and
interpretation thereof may be inconsistent. The outcome of litigation
in PRC courts may be uncertain. Further, it may be difficult to obtain
swift and equitable enforcement or to obtain enforcement of a judgment
by a court of another jurisdiction. The introduction of new PRC laws
and regulations and the interpretation of existing ones may be subject
to policy changes reflecting domestic political or social changes. As
the PRC legal system develops, there can be no assurance that changes
in such regulation or interpretation will not have a material adverse
effect on the business, financial condition, results of operations and
future prospects of the Company.
(iv) Regulatory Environment. PRC laws relating to foreign
investments, media and financial markets are relatively new compared
with those in more mature markets. New laws and regulations continue
to be promulgated. There are substantial uncertainties regarding the
interpretation, application and administration of current PRC laws and
regulations and the impact of any new laws and regulations is unknown.
(v) Currency Restrictions. As a holding company for operations in
the PRC, the Company will depend on dividends and other payments from
its subsidiaries and related entities in the PRC for its revenues. The
remittance of funds out of the PRC as well as the exchange rate of the
RMB to other currencies are highly regulated. Changes to the exchange
rate regime as well as the regulations affecting the remittance of
funds out of the PRC may have an adverse impact on the Company's
ability to fund its expenses outside of the PRC or to issue dividends
to its shareholders. Furthermore, any change in the exchange rates
between the RMB and other currencies may also have an impact on the
amount of proceeds in other currencies the Company receives from the
PRC and, ultimately, the value of the Purchaser's investment in the
Company. The value of the Purchaser's investment in the Company will
also be affected by the foreign exchange rate between the HK Dollar
and other currencies.
Section 6. Pre-closing Covenants. From the date of this Agreement up to and
including the Second Closing Date:
(a) Conduct of Business. The Company and each Covered Subsidiary shall
conduct its business and operations only in the ordinary course and in a
manner that is consistent with past practice, including, without
limitation: (a) performing all of its obligations under contracts,
agreements and instruments by which it and its properties are bound; (b)
using all commercially reasonable efforts in maintaining (i) its business
organization intact, (ii) all of its properties, equipment and other assets
in good repair, working order and condition, (iii) its present workforce,
including all officers of the Company or such Covered Subsidiary, and (iv)
its current relationships with its suppliers and customers; and (c) keeping
in full force and effect the insurance currently maintained by it.
21
<PAGE>
(b) Cooperation. The Company shall use its commercially reasonable
efforts to cause the transactions contemplated by this Agreement to be
consummated, including, without limitation, (a) obtaining all approvals and
consents of, making all filings with and giving all notices to, all such
Governmental Bodies and other persons as may be necessary or reasonably
requested by the Purchasers in order to consummate the transactions
contemplated by this Agreement, and all Contracts, other agreements or
leases with respect to which the obtaining of an approval or consent is
necessary or advisable, and (b) giving prompt notice to the Purchasers of
any event, notice or other communication which causes or in the reasonable
judgment of the Company could cause a Material Adverse Effect on the
Company.
(c) No Solicitation of Transaction. The Company shall not, directly or
indirectly, initiate, solicit or encourage any discussions or negotiations,
or enter into any agreements, with any Person other than the Purchasers
with respect to the sale of any of its capital stock or the sale of all or
any material portion of its assets or the merger or consolidation of the
Company with any other Person. The Company shall, promptly after receipt
thereof by the Company, notify the Purchasers of any offer by any Person to
make any such purchase, merger or consolidation or enter into any such
agreement.
(d) Access to the Company. The Company shall afford the Purchasers and
their representatives reasonable access, upon reasonable prior notice and
at such scheduled times and places during normal business hours as shall be
reasonably approved by the Company (but without any interference with the
business operations of the Company), to the books, records, properties and
facilities of the Company.
(e) Notification of Breach of Representations, Warranties and
Covenants. The Company shall promptly give written notice to the Purchasers
upon becoming aware of the occurrence or impending or threatened occurrence
of any event which would cause or constitute a breach of any of the
representations, warranties or covenants of the Company or any Covered
Subsidiary contained or referred to in this Agreement and shall use its
best efforts to prevent the same or remedy the same promptly.
(f) Changes in Capital Stock. At or after the date hereof and at or
prior to the Initial Closing Date, except as contemplated by this Agreement
or with the prior written consent of the Purchasers, the Company shall not
amend any of its constituent documents (including, without limitation, its
articles of incorporation, memorandum of association, charter documents or
bylaws); make any change in its authorized, issued or outstanding capital
stock or any other Equity Security; issue, sell, pledge, assign or
otherwise encumber or dispose of, or purchase, redeem or otherwise acquire,
any of its shares of capital stock or other Equity Securities or enter into
any agreement, call or commitment of any character so to do; grant or issue
any stock option relating to, right to acquire, or security convertible
into, shares of its capital stock or other Equity Security; purchase,
redeem, retire or otherwise acquire (other than in a fiduciary capacity)
any shares of, or any security convertible into, its capital stock or other
Equity Securities, or agree to do any of the foregoing.
22
<PAGE>
(g) Litigation Developments. The Company agrees to promptly advise the
Purchasers with respect to any and all material legal actions or other
proceedings or investigations and to promptly advise the Purchasers with
respect to any significant developments arising in connection with said
actions, proceedings or investigations.
(h) No Shopping. Until the Second Closing or termination of this
Agreement, the Company shall not, directly or indirectly, through any
officer, director, stockholder, agent, affiliate, employee or otherwise,
solicit, initiate or encourage submission of any proposal or offer from any
person, group or entity relating to any acquisition of the assets, business
or capital stock of the Company or any Covered Subsidiary, or other similar
transaction or business combination involving the business of the Company
or any Covered Subsidiary; shall not participate in any negotiations or
discussions regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in any way with, or assist or
participate in, facilitate or encourage any effort or attempt by any other
person or entity to do or seek such acquisition or other transaction; and
shall inform the Purchasers of any such inquiry.
(i) Reserved Shares. The Company shall reserve a sufficient number of
authorized Company Common Shares for issuance such that at all times there
are enough Company Common Shares to fully convert the Shares upon election
by the Purchaser to convert into Company Common Shares in accordance with
the terms of the Articles.
Section 7. Conditions to Closing.
(a) Conditions to Purchasers' Obligations. The obligation of the
Purchasers to purchase the Shares at each Closing is subject to the
fulfillment on or prior to the relevant Closing Date of the following
conditions:
(i) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties made by the Company in
Section 4 shall be true and correct in all respects when made, and
shall be true and correct on such Closing Date with the same force and
effect as if they had been made on and as of said date, subject to the
changes contemplated by this Agreement and the other Equity Documents;
and the Company shall have performed all obligations and conditions
herein required to be performed by them on or prior to such Closing
Date.
(ii) Authorizations. All Consents and other authorizations,
approvals or permits of any Governmental Body that are required in
connection with the lawful issuance and sale of the Shares, the
conversion of the Shares into Company Common Shares, the issuance of
such Company Common Shares upon conversion, the conversion of the
Shares into common stock of the Parent and the issuance of such common
stock of the Parent upon conversion shall have been duly obtained and
shall be effective on and as of such Closing Date.
(iii) No Material Adverse Change. There shall have been no
Material Adverse Change as determined in the discretion of the
Purchasers.
23
<PAGE>
(iv) Opinion of Company's Counsel. The Purchasers shall have
received from counsels to the Company, opinions addressed to the
Purchasers, dated as of such Closing Date, substantially in the form
of Exhibit E attached hereto.
(v) Credit and Equity Documents. The Purchasers shall have
received duly executed original copies of each Credit Document and
each Equity Document to which the Company is a party.
(vi) Share Certificates. The Company shall have delivered to the
Purchasers the certificates representing the Shares to be purchased at
such Closing by the Purchasers which shall be issued in each
Purchaser's name.
(vii) No Default. As of such Closing Date, (i) no Default or
Event of Default shall have occurred under the Credit Agreement, (ii)
no Accelerated Redemption Event shall have occurred under the Articles
of the Company and (iii) no default shall have occurred under any
Equity Document.
(viii) Compliance Certificate. The Company shall have delivered
to the Purchasers a certificate, executed by an Authorized Officer of
the Company, dated such Closing Date, certifying to the fulfillment of
the conditions specified in this Section 7(a).
(ix) Consents. The Purchasers shall have received such Consents
and other information, approvals, opinions or documents reasonably
requested by the Purchasers in connection with such Closing, and no
such Consents and other information, approvals, opinions or documents
shall have been withdrawn or suspended.
(x) Dividend. The Purchasers shall have received a special
dividend of $1,000,000 on the Preferred Shares prior to the Second
Closing.
(xi) Debt Closing. The closing of the transaction contemplated by
the Credit Agreement shall have occurred previously or simultaneously.
(b) Conditions to Purchasers' Obligations. The obligation of the
Purchasers to purchase the Additional Shares at the Second Closing is
subject to the fulfillment on or prior to the Second Closing Date of the
following condition (in addition to the conditions set forth in Section
7(a)):
(i) Newspaper Assets. 100% of the ownership of both Newspaper
Assets set forth in Annex B shall either (i) have been acquired prior
to the Second Closing Date by the Company or a Subsidiary thereof or
(ii) will be acquired by the Company or a Subsidiary thereof
simultaneously with the Second Closing. The aggregate purchase price
for all Newspaper Assets shall not exceed $20,000,000 in the
aggregate.
24
<PAGE>
(c) Conditions to Obligations of the Company. The Company's obligation
to sell and issue the Shares at each Closing is subject to the fulfillment
on or prior to each Closing Date of each of the following conditions:
(i) Representations and Warranties Correct; Performance of
Obligations. The representations and warranties of the Purchasers in
Section 5 hereof shall be true and correct when made, and shall be
true and correct on such Closing Date with the same force and effect
as if they had been made on and as of said date, subject to the
changes contemplated by this Agreement and the Related Documents; and
the Purchasers shall have performed all obligations and conditions
herein required to be performed by them on or prior to such Closing
Date.
(ii) Authorizations. All Consents and other authorizations,
approvals or permits of any Governmental Body that are required in
connection with the lawful issuance and sale of the Shares, the
conversion of the Shares into Company Common Shares, the issuance of
such Company Common Shares upon conversion, the conversion of the
Shares into common stock of the Parent and the issuance of such common
shares of the Parent upon conversion shall have been duly obtained and
shall be effective on and as of such Closing Date.
(iii) Payment of Purchase Price. The Purchasers shall have
delivered the purchase price specified in Section 2(c) to the Company.
Section 8. Termination
(a) Termination At Any Time. This Agreement may be terminated at any
time by the mutual written consent of the Company and a majority of the
Purchasers.
(b) Termination Prior to Initial Closing. This Agreement may be
terminated at any time prior to the Initial Closing:
(i) by either any Purchaser or the Company, upon prior written
notice, if there shall have been a material breach by the other party
of any of the terms or provisions of this Agreement which shall not
have been waived in writing by the non breaching party and such breach
cannot be cured within two (2) days of receipt of written notice;
(ii) by either a majority of the Purchasers or the Company, upon
written notice, if the Initial Closing shall not have occurred on or
before April 15, 2006 for any reason other than the failure or refusal
of the party seeking to terminate to perform any of its obligations
hereunder; or
(iii) by either any of the Purchasers or the Company if any court
having competent jurisdiction or other Governmental Body shall have
issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement, and such order, decree, ruling or
other action shall have become final and non appealable.
25
<PAGE>
(c) Termination of Purchase of Additional Shares. Purchaser may
terminate its obligations to purchase the Additional Shares at any time,
upon written notice to the Company:
(i) if there shall have been a material breach by the Company of
any of the terms or provisions of this Agreement which shall not have
been waived in writing by the Purchaser and such breach cannot be
cured within two (2) days of receipt of written notice;
(ii) if the Second Closing shall not have occurred on or before
December 16, 2006 for any reason other than the failure or refusal of
the Purchaser to perform any of its obligations hereunder;
(iii) upon (x) a Default or Event of Default under the Credit
Agreement, (y) an Accelerated Redemption Event under the Articles of
the Company or (z) a default under any Equity Document; or
(iv) if any court having competent jurisdiction or other
Governmental Body shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and non
appealable.
(d) Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 8(a) or 8(b) hereof, such termination shall
be the sole remedy, and, except with respect to Sections 9(f) (Expenses),
9(i) (Finder's Fees) and 9(m) (Public Announcement) hereof, (a) this
Agreement shall forthwith become void, and (b) there shall be no liability
on the part of the Company or any Purchaser; provided, however, that if
such termination shall result from the breach by a party hereto of any of
its obligations under this Agreement, such party shall be fully liable for
any and all damages (other than indirect or consequential damages, it being
understood that no amount payable or deliverable under any Credit Document
or Equity Document shall constitute indirect or consequential damages)
sustained or incurred by the other party hereto, its Affiliates or any of
the representatives of any of them as a result of or arising from such
breach and such other party shall be entitled to seek any remedies
available to it at law or in equity. No Purchaser shall be liable for any
damages resulting from the breach of any other Purchaser of its obligations
hereunder.
Section 9. Miscellaneous.
(a) Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York without application of principles of
conflicts of law.
(b) Submission to Jurisdiction. Each party hereto hereby (a) agrees
that any Action with respect to any Equity Document may be brought only in
the New York State courts sitting in New York County or the federal courts
of the United States of America for the Southern District of New York and
sitting in New York County, (b) accepts for itself and in respect of its
property, generally and unconditionally, the exclusive
26
<PAGE>
jurisdiction of such courts, (c) irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or
based on the grounds of forum non conveniens, which it may now or hereafter
have to the bringing of any Action in those jurisdictions, and (d)
irrevocably consents to the service of process of any of the courts
referred to above in any Action by the mailing of copies of the process to
the parties hereto as provided in Section 9(f). Service effected as
provided in this manner will become effective ten (10) calendar days after
the mailing of the process.
(c) Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by the
Purchasers and the closings of the transactions contemplated hereby.
(d) Successors and Assigns. Each Purchaser may assign its interest in
this Agreement in connection with the transfer of its Shares as long as
such Shares are Registrable Securities as provided under the Investor
Rights Agreement. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
(e) Entire Agreement; Amendment. This Agreement and the Equity
Documents to be delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof. Except as provided in Section 8 hereof, any term of
this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of
the Company and the Purchasers holding a majority of the Shares.
(f) Notices. All notices, requests, demands and other communications
required to or permitted to be given under this Agreement shall be in
writing and shall be conclusively deemed to have been duly given when hand
delivered to the other party; when received when sent by facsimile;
provided, however, that notices given by facsimile shall not be effective
unless either a duplicate copy of such facsimile notice is promptly given
by depositing same in a United States post office with first-class postage
prepaid, or the receiving party delivers a written confirmation of receipt
for such notice either by facsimile or any other method permitted under
this paragraph; additionally, any notice given by facsimile shall be deemed
received on the next business day if such notice is received after 5:00
p.m. (recipient's time) or on a nonbusiness day; three (3) business days
after the same has been deposited in a United States post office with first
class or certified mail return receipt requested postage prepaid; or the
next business day after same has been deposited with a national overnight
delivery service, postage prepaid with next business day delivery
guaranteed; provided that the sending party receives a confirmation of
delivery from the delivery service provider. If notice is to be given to
the Purchasers, such notice will be given, delivered or sent to the address
appearing on Exhibit A, and if notice is to be given to the Company, such
notice will be given to Xinhua Finance Media Limited, Suite 2003-5, Vicwood
Plaza, 199 Des Voeux Road, Central, Hong Kong, telephone number: +852 3196
3939, facsimile number: +852 2541 8266, Attention: John McLean. Each party
shall make an ordinary, good faith effort to
27
<PAGE>
ensure that it will accept or receive notices that are given in accordance
with this Section and that any person to be given notice actually receives
such notice. A party may change or supplement its address for notice, or
designate additional addresses, for purposes of this Section by giving the
other party written notice of the new address in the manner set forth
above.
(g) Expenses.
(i) Each party shall bear its own expenses incurred in connection
with the transactions contemplated by the Agreement.
(ii) If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary
disbursements, at trial and on appeal, in addition to any other relief
to which each party may be entitled.
(h) Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party, upon any breach or default of
another party under this Agreement, shall impair any such right, power or
remedy of such non breaching party, nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, of any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies
either under this Agreement, or by law or otherwise afforded to any party,
shall be cumulative and not alternative.
(i) Severability of this Agreement. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
(j) Finder's Fees. The Company agrees to indemnify and to hold the
Purchasers harmless against and from any liability for commission or
compensation in the nature of a finder's fee to any broker or other person
or firm (and the costs and expenses of defending against such liability or
asserted liability) for which the Company, or any of its employees or
representatives, is responsible. The Purchasers hereby agree to indemnify
and to hold the Company harmless against and from any liability for any
commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which the Purchasers, or any of their
employees or representatives, are responsible.
(k) Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
28
<PAGE>
(l) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
(m) Gender. The use of the neuter gender herein shall be deemed to
include the masculine and feminine gender, if the context so requires.
(n) Public Announcement. The Company shall not disclose any
Purchaser's name or identity as an investor in the Company in any press
release or other public announcement or in any document or material filed
with any governmental entity, without the prior written consent of the
Purchaser, unless such disclosure is required by applicable law or
governmental regulations or by order of a court of competent jurisdiction,
in which case prior to making such disclosure the Company shall give
written notice to the Purchaser describing in reasonable detail the
proposed content of such disclosure and shall permit the Purchaser to
review and comment upon the form and substance of such disclosure.
29
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the heading hereof.
THE COMPANY:
XINHUA FINANCE MEDIA LIMITED
By: /s/ John McLean
------------------------------------
Name: John McLean
Title: Authorized signatory
S-1
<PAGE>
THE PURCHASER(S):
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC
By: /s/
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
<PAGE>
EXHIBIT A
SCHEDULE OF PURCHASERS
MAXIMUM NUMBER OF
PREFERRED SHARES INITIAL SHARES ADDITIONAL SHARES
PURCHASER NAME, ADDRESS, FAX NO. TO BE PURCHASED PURCHASED PURCHASED
-------------------------------- ----------------- -------------- -----------------
Patriarch Partners Media Holdings, LLC 21,873,235 16,404,926 5,468,309
---------- ---------- ---------
TOTAL 21,873,235 16,404,926 5,468,309
========== ========== =========
Exhibit
<PAGE>
EXHIBIT C
SCHEDULE OF EXCEPTIONS
LEASED PROPERTY
(1) ACTIVE ADVERTISING AGENCY LIMITED
Tenancy agreement dated 26 July 2004 entered into among Active Advertising
Agency Limited and Trinity Advertising Agency Limited as tenants and Newbh
Limited as landlord for the lease of the property situated at 21/F, On Hong
Commercial Building, 145 Hennessy Road, Wanchai, Hong Kong for a term of 2 years
from 1 September 2004 and 31 August 2006 at a monthly rental of HK$27,000.00
(inclusive of management fees and Government rates).
(2) ECONWORLD MEDIA LIMITED
Memorandum of tenancy dated 16 July 2005 entered into between EconWorld Media
Limited as tenant and Hang Lung Real Estate Agency Limited as agent for the
registered owner Zarat Limited for the lease of the property situated at Room
No. 203A, 2nd Floor, Stanhope House, 734 King's Road, Quarry Bay, Hong Kong for
a term of 2 years from 15 July 2005 to 14 July 2007 at a monthly rental of
HK$10,798.50, exclusive of monthly management fees of HK$3,192.60,
air-conditioning charges and Government rates.
Exhibit
<PAGE>
SUBSIDIARIES AND CAPITALIZATION
(1) UPPER STEP HOLDINGS LIMITED (BVI)
ISSUED SHARE CAPITAL 500 SHARES OF US$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO. OF ORDINARY SHARES PERCENTAGE (%)
----------- ---------------------- --------------
Fine Power Limited 80 16
Honour Rise Services Limited 220 44
Quality Idea Limited 60 12
Sino Investments Holdings Limited 45 9
Xinhua Finance Media Limited 95 19
--- ---
TOTAL: 500 100
=== ===
(2) CHINA LEAD PROFITS LIMITED (BVI)
ISSUED SHARE CAPITAL 1 SHARE OF US$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO. OF ORDINARY SHARES PERCENTAGE (%)
----------- ---------------------- --------------
Upper Step Holdings Limited 1 100
--- ---
TOTAL: 1 100
=== ===
(3) JIA LUO CONSULTING LIMITED (PRC WFOE)
REGISTERED CAPITAL US$3,200,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
China Lead Profits Limited US$3,200,000 100
------------ ---
TOTAL: US$3,200,000 100
============ ===
Exhibit
<PAGE>
(4) SHANGHAI YUANZHI ADVERTISING CO., LTD (PRC)
REGISTERED CAPITAL RMB100,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Li Guang Jie RMB49,000 49
Wan Jun RMB51,000 51
---------- ---
TOTAL: RMB100,000 100
========== ===
(5) ACCORD GROUP INVESTMENTS LIMITED (BVI)
ISSUED SHARE CAPITAL 100 SHARES OF US$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO. OF ORDINARY SHARES PERCENTAGE (%)
----------- ---------------------- --------------
Sino Investments Holdings Limited 81 81
Xinhua Finance Media Limited 19 19
--- ---
TOTAL: 100 100
=== ===
(6) GREAT TRIUMPH INVESTMENTS LIMITED (BVI)
ISSUED SHARE CAPITAL 1 SHARE OF US$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO. OF ORDINARY SHARES PERCENTAGE (%)
----------- ---------------------- --------------
Accord Group Investments Limited 1 100
--- ---
TOTAL: 1 100
=== ===
(7) NEW CHINA MEDIA CO., LIMITED (PRC WFOE)
REGISTERED CAPITAL US$1,400,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Great Triumph Investments Limited US$1,400,000 100
------------ ---
TOTAL: US$1,400,000 100
============ ===
(8) BEIJING SHIJI GUANGNIAN ADVERTISING CO., LIMITED (PRC)
REGISTERED CAPITAL RMB3,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Wang Yong Hong RMB2,514,000 83.8
Yu Gang RMB486,000 16.2
------------ ----
TOTAL: RMB3,000,000 100
============ ====
(9) MING SHING INTERNATIONAL LIMITED (BVI)
Exhibit
<PAGE>
ISSUED SHARE CAPITAL 1,000 SHARES OF US$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO. OF ORDINARY SHARES PERCENTAGE (%)
----------- ---------------------- --------------
Xinhua Finance Media Limited 1,000 100
----- ---
TOTAL: 1,000 100
===== ===
(10) UPPER WILL ENTERPRISES LIMITED (BVI)
ISSUED SHARE CAPITAL 2 SHARES OF US$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO. OF ORDINARY SHARES PERCENTAGE (%)
----------- ---------------------- --------------
Ming Shing International Limited 2 100
--- ---
TOTAL: 2 100
=== ===
(11) ACTIVE ADVERTISING AGENCY LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 2 SHARES OF HK$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO OF ORDINARY SHARES PERCENTAGE (%)
----------- --------------------- --------------
Upper Will Enterprises Limited 2 100
--- ---
TOTAL: 2 100
=== ===
(12) ACTIVE ADVERTISING (GUANGZHOU) CO., LTD. (PRC WFOE)
REGISTERED CAPITAL US$300,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Active Advertising Agency Limited US$300,000 100
---------- ---
TOTAL: US$300,000 100
========== ===
(13) BEIJING CENTURY MEDIA CULTURE CO., LTD. (PRC)
REGISTERED CAPITAL RMB1,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
An Li Zhang RMB 500,000 50
Wang Yong Hong RMB 500,000 50
------------ ---
TOTAL: RMB1,000,000 100
============ ===
Exhibit
<PAGE>
(14) BEIJING WORKSHOP COMMUNICATIONS CO., LTD. (PRC)
REGISTERED CAPITAL RMB1,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Century Media Culture
Co., Ltd. RMB 900,000 90
Yu Gang RMB 50,000 5
Xia Huai RMB 50,000 5
------------ ---
TOTAL: RMB1,000,000 100
============ ===
Exhibit
<PAGE>
(15) BEIJING GOLDEN WAYS CULTURE DEVELOPMENT CO., LTD. (PRC)
REGISTERED CAPITAL RMB300,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Century Media Culture
Co., Ltd. RMB270,000 90
Yu Gang RMB 15,000 5
Xia Huai RMB 15,000 5
---------- ---
TOTAL: RMB300,000 100
========== ===
(16) SHENZHEN ACTIVE TRINITY CO., LTD. (PRC)
REGISTERED CAPITAL RMB300,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
An Li Zhang RMB150,000 50
Wang Yong Hong RMB150,000 50
---------- ---
TOTAL: RMB300,000 100
========== ===
(17) BEIJING TAIDE ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB10,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
An Li Zhang RMB5,000,000 50
Wang Yong Hong RMB5,000,000 50
------------- ---
TOTAL: RMB10,000,000 100
============= ===
Exhibit
<PAGE>
(18) SHANGTUO ZHIYANG INTERNATIONAL ADVERTISING (BEIJING) CO., LTD. (PRC)
REGISTERED CAPITAL RMB1,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising
Co., Ltd. RMB 800,000 80
Wang Xiao Yu RMB 200,000 20
------------ ---
TOTAL: RMB1,000,000 100
============ ===
(19) BEIJING LONGMEI TELEVISOIN AND BROADCAST ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB500,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising Co.,
Ltd. RMB400,000 80
Zhou Jia RMB 50,000 10
Zhang Yiran RMB 50,000 10
---------- ---
TOTAL: RMB500,000 100
========== ===
(20) BEIJING JINLONG RUNXIN ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB500,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising Co.,
Ltd. RMB400,000 80
Zhou Jia RMB 50,000 10
Zhang Yu Yu RMB 50,000 10
---------- ---
TOTAL: RMB500,000 100
========== ===
Exhibit
<PAGE>
(21) SHANGHAI YUANXIN ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB2,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising Co.,
Ltd. RMB1,600,000 80
Mo Hai Hong RMB 400,000 20
------------ ---
TOTAL: RMB2,000,000 100
============ ===
(22) ECONWORLD MEDIA LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 350,000 SHARES OF HK$0.01 EACH
SHAREHOLDING
SHAREHOLDER NO OF ORDINARY SHARES PERCENTAGE (%)
----------- --------------------- --------------
Best Gain Group Ltd. 10,000 2.86
Cheers Perfect Ltd. 20,000 5.71
Cheung Wah Keung 10,000 2.86
EconWorld Holdings Ltd. 15,000 4.29
Gainful Concept Ltd. 30,000 8.57
Justly Investment International
Ltd. 5,000 1.42
Lo Li Chun 30,000 8.57
Lo Shui Ling Raymond 10,000 2.86
Quach Fung Vi 10,000 2.86
Xinhua Finance Media Limited 210,000 60.00
------- -----
TOTAL: 350,000 100
======= =====
(23) FINANCIAL WORLD (SHANGHAI) CO., LTD. (PRC)
REGISTERED CAPITAL US$210,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
EconWorld Media Limited US$210,000 100
---------- ---
TOTAL: US$210,000 100
========== ===
(24) ECONWORLD (SHANGHAI) CO., LTD. (PRC)
REGISTERED CAPITAL US$140,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
EconWorld Media Limited US$140,000 100
---------- ---
TOTAL: US$140,000 100
========== ===
Exhibit
<PAGE>
(25) ECONWORLD PUBLISHING LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 100,000 SHARES OF HK$0.01 EACH
SHAREHOLDING
SHAREHOLDER NO OF ORDINARY SHARES PERCENTAGE (%)
----------- --------------------- --------------
ECONWORLD MEDIA LIMITED 99,999 100
Fan Cho Tak Alex 1
(hold in trust for
EconWorld Media
Limited)
------- ---
TOTAL: 100,000 100
======= ===
(26) MONEY JOURNAL PUBLICATION LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 1,000 SHARES OF HK$0.01 EACH
SHAREHOLDING
SHAREHOLDER NO OF ORDINARY SHARES PERCENTAGE (%)
----------- --------------------- --------------
ECONWORLD MEDIA LIMITED 999 100
Fan Cho Tak Alex 1
(hold in trust for
EconWorld Media
Limited)
----- ---
TOTAL: 1,000 100
===== ===
(27) MONEY JOURNAL ADVERTISING COMPANY LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 10,000 SHARES OF HK$1.00 EACH
SHAREHOLDING
SHAREHOLDER NO OF ORDINARY SHARES PERCENTAGE (%)
----------- --------------------- --------------
MONEY JOURNAL PUBLICATION LIMITED 10,000 100
------ ---
TOTAL: 10,000 100
====== ===
Exhibit
<PAGE>
MATERIAL CONTRACTS
NATURE OF USD
COMPANY CLIENT NAME IN ENGLISH CONTRACT RMB @8.05 CONTRACT PERIOD
------- ----------------------------------------------- ----------- ------------- ------------ ---------------
Yuanxin Shanghai Christine Food Co., Ltd. Advertising 1,700,000.00 211,180.12 1/06 - 12/06
Shanghai Yangzhi Media Co., Ltd. 6,000,000.00 745,341.61 2/06 - 12/06
------------- ------------
7,700,000.00 956,521.74
Taide Beijing Be-one Advertising Co., Ltd. Advertising 2,400,000.00 298,136.65 2/06 --
Beijing Longmei Chuangli Media Group Advertising 3,023,030.00 375,531.68 1/06 - 5/06
Beijing Fulite Industrial Co.,Ltd. Advertising 2,400,000.00 298,136.65 1/06 - 12/06
Beijing diantong Advertising co.,Ltd. Advertising 2,343,036.00 297,060.37 1/06 - 5/06
Guangzhou Tianhen Xingzhi Advertising Co., Ltd. Advertising 2,000,000.00 248,447.20 3/06 - 12/06
Shengshi Greatwall Advertising Co., Ltd. Advertising 1,821,490.00 226,272.05 1/06 - 5/06
Beijing Yuanqi East Advertising co., Ltd. Advertising 1,800,000.00 223,602.48 3/06 - 12/06
Guangdong Kailuo Advertising Co., Ltd. Advertising 1,453,800.00 180,596.27 1/06 - 5/06
Beijing Jianguo Hospital Advertising 1,339,200.00 166,360.25 1/06 - 12/06
Beijing Hongzhi Shidai Advertising Co., Ltd. Advertising 1,311,860.00 162,963.98 1/06 - 5/06
Shanghai Liaobeina Advertising Co., Ltd. Advertising 1,096,810.00 136,249.69 1/06 - 5/06
------------- ------------
18,589,226.00 2,309,220.62
Active Advertising King Sturge LLP Advertising 811,973.84 100,866.32 2/06 - 3/06
Agency Limited
Beijing Century Media Haishi Tourism Weishi Media Co., Ltd. Production 2,954,880.00 367,065.84 1/06 - 12/07
Culture Co., Ltd.
Beijing Century Media China Radio International (for FM91.5) - Advertising 1,475,000.00 183,229.81 1/06 - 12/06
Culture Co., Ltd. Beijiatong Wanwei Yihua Golf Sports Technology
Service Co., Ltd.
China Radio International (for FM91.5) - Advertising 817,000 101,490.68 4/06 - 12/06
Mingsheng Bank
Exhibit
<PAGE>
SCHEDULE OF INDEBTEDNESS
List of Indebtedness of Credit Parties existing as of the date of the
Credit Agreement :-
Amount of
Date of loan Lender Borrower Indebtedness Repayment Date
------------ ------------------- ------------------- ------------------ --------------
Mar 2, 06 Xinhua Financial Xinhua Finance US$2 million plus On demand
Network Media Limited interest at 4% per
annum
Feb 28, 2006 Xinhua Finance Upper Step Holdings US$2,000,000 On demand
Media Limited Limited
Mar 6, 2006 Upper Step Holdings China Lead Profits US$2,000,000 On demand
Limited Limited
Mar 10, 2006 China Lead Profits Jia Luo Consulting US$2,000,000 On demand
Limited
Oct 18, 2005 Xinhua Financial Econworld Media US$300,000 plus June 30, 2006
Network Limited interest at 4% per
annum
Oct 18, 2005 Xinhua Financial Econworld Media US$200,000 plus June 30, 2006
Network Limited interest at 4% per
annum
Feb 14, 2006 Xinhua Financial Econworld Media US$1,330,000 plus June 30, 2006
Network Limited interest at 4% per
annum
Exhibit
<PAGE>
[FINANCIAL PROJECTION OF THE COMPANY]
Exhibit
<PAGE>
EXHIBIT D
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF XINHUA FINANCE MEDIA LIMITED
AS OF MARCH 16, 2006
Exhibit
<PAGE>
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
XINHUA FINANCE MEDIA LIMITED
Exhibit
<PAGE>
TABLE OF CONTENTS
Table A
INTERPRETATION
1. Definitions
SHARES
2. Power to Issue Shares
3. Redemption and Purchase of Shares
4. Rights Attaching to Shares
5. Calls on Shares
6. Joint and Several Liability to Pay Calls
7. Forfeiture of Shares
8. Share Certificates
9. Fractional Shares
REGISTRATION OF SHARES
10. Register of Members
11. Registered Holder Absolute Owner
12. Transfer of Registered Shares
13. Transmission of Registered Shares
ALTERATION OF SHARE CAPITAL
14. Power to Alter Capital
15. Variation of Rights Attaching to Shares
DIVIDENDS AND CAPITALISATION
16. Dividends
17. Power to Set Aside Profits
18. Method of Payment
19. Capitalisation
MEETINGS OF MEMBERS
20. Annual General Meetings
21. Extraordinary General Meetings
22. Requisitioned General Meetings
23. Notice
24. Giving Notice
25. Postponement of General Meeting
26. Participating in Meetings by Telephone
27. Quorum at General Meetings
28. Chairman to Preside
29. Voting on Resolutions
30. Power to Demand a Vote on a Poll
31. Voting by Joint Holders of Shares
32. Instrument of Proxy
33. Representation of Corporate Member
34. Adjournment of General Meeting
35. Written Resolutions
36. Directors Attendance at General Meetings
DIRECTORS AND OFFICERS
37. Election of Directors
38. Number of Directors
39. Term of Office of Directors
40. Alternate Directors
41. Removal of Directors
42. Vacancy in the Office of Director
43. Remuneration of Directors
44. Defect in Appointment of Director
45. Directors to Manage Business
46. Powers of the Board of Directors
47. Register of Directors and Officers
48. Officers
49. Appointment of Officers
50. Duties of Officers
51. Remuneration of Officers
52. Conflicts of Interest
53. Indemnification and Exculpation of Directors and Officers
MEETINGS OF THE BOARD OF DIRECTORS
54. Board Meetings
55. Notice of Board Meetings
56. Participation in Meetings by Telephone
57. Quorum at Board Meetings
58. Board to Continue in the Event of Vacancy
59. Chairman to Preside
60. Written Resolutions
61. Validity of Prior Acts of the Board
CORPORATE RECORDS
62. Minutes
63. Register of Mortgages and Charges
64. Form and Use of Seal
ACCOUNTS
65. Books of Account
66. Financial Year End
AUDITS
67. Audit
68. Appointment of Auditors
69. Remuneration of Auditors
70. Duties of Auditor
71. Access to Records
VOLUNTARY WINDING-UP AND DISSOLUTION
72. Winding-Up
CHANGES TO CONSTITUTION
73. Changes to Articles
74. Changes to the Memorandum of Association
75. Discontinuance
76. Conflicts with Schedule
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 1
Table A
The regulations in Table A in the First Schedule to the Law (as defined
below) do not apply to the Company.
INTERPRETATION
1. Definitions
1.1 In these Articles, the following words and expressions shall, where
not inconsistent with the context, have the following meanings,
respectively:
Alternate Director an alternate director appointed in
accordance with these Articles;
Articles these Articles of Association as altered
from time to time which term shall
include the Schedule hereto;
Auditor includes an individual or partnership;
Board the board of directors appointed or
elected pursuant to these Articles and
acting at a meeting of directors at
which there is a quorum or by written
resolution in accordance with these
Articles;
Common Share a common share of US$0.001 par value in
the share capital of the Company with
the rights set out in these Articles,
including Schedule 1 to these Articles;
Company the company for which these Articles are
approved and confirmed;
Convertible Preferred Share a Preferred Share with the rights,
including as to conversion, set out in
Schedule 2 to these Articles;
Director a director, including a sole director,
for the time being of the Company and
shall include an Alternate Director;
Law The Companies Law of the Cayman Islands
and every modification, reenactment or
revision thereof for the time being in
force;
Member the person registered in the Register of
Members as the holder of shares in the
Company and, when two or more
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 2
persons are so registered as joint
holders of shares, means the person
whose name stands first in the Register
of Members as one of such joint holders
or all of such persons, as the context
so requires;
Memorandum the memorandum of association of the
Company as originally registered or as
from time to time amended;
month calendar month;
notice written notice as further provided in
these Articles unless otherwise
specifically stated;
Officer any person appointed by the Board to
hold an office in the Company;
ordinary resolution a resolution which:
(a) has been passed by a simple
majority of such Members as, being
entitled to do so, vote in person
or by proxy at a general meeting of
which notice specifying the
intention to propose the resolution
as an ordinary resolution has been
duly given; or
(b) has been 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
aforesaid.
paid-up paid-up or credited as paid-up;
Preferred Share a preferred share of US$0.001 par value
in the share capital of the Company with
the rights set out in these Articles;
Register of Directors and the register of directors and officers
Officers referred to in these Articles;
Register of Members the register of Members referred to in
these Articles;
Registered Office the registered office for the time being
of the Company;
Seal the common seal or any official or
duplicate seal of the Company;
Secretary the person appointed to perform any or
all of the duties of secretary of the
Company and includes any deputy or
assistant secretary and any person
appointed by the Board to perform any of
the duties of the Secretary;
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 3
share a share or shares of any class and
series in the Company including a Common
Share or a Convertible Preferred Share,
and includes a fraction of a share;
Special Resolution a resolution which:
(a) has been passed by a majority of
not less than two-thirds of such
Members as, being entitled to do
so, vote in person or by proxy at a
general meeting of which notice
specifying the intention to propose
the resolution as a special
resolution has been duly given; or
(b) has been 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
aforesaid.
written resolution a resolution passed in accordance with
Article 35 or 60; and
year calendar year.
1.2 In these Articles, where not inconsistent with the context:
(a) capitalised terms used herein but not defined have the meaning
set out in Schedule 2 to these Articles;
(b) words denoting the plural number include the singular number and
vice versa;
(c) words denoting the masculine gender include the feminine and
neuter genders;
(d) words importing persons include companies, associations or bodies
of persons whether corporate or not;
(e) the words:-
(i) "may" shall be construed as permissive; and
(ii) "shall" shall be construed as imperative;
(f) a reference to statutory provision shall be deemed to include any
amendment or re-enactment thereof; and
(g) unless otherwise provided herein, words or expressions defined in
the Law shall bear the same meaning in these Articles.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 4
1.3 In these Articles expressions referring to writing or its cognates
shall, unless the contrary intention appears, include facsimile,
printing, lithography, photography, electronic mail and other modes of
representing words in visible form.
1.4 Headings used in these Articles are for convenience only and are not
to be used or relied upon in the construction hereof.
SHARES
2. Power to Issue Shares
Subject to these Articles and to prior written consent being obtained from
the Majority Holders for the issuance of any shares which are senior in
rights in any respect to the Convertible Preferred Shares, the Preferred
Shares or the Common Shares and to any resolution of the Members to the
contrary, and without prejudice to any special rights previously conferred
on the holders of any existing shares or class of shares, the Board shall
have the power to issue any unissued shares of the Company on such terms
and conditions as it may determine and any shares or class and series of
shares (including the issue or grant of options, warrants and other rights,
renounceable or otherwise in respect of shares) may be issued with such
preferred, deferred or other special rights or such restrictions, whether
in regard to dividend, voting, return of capital, or otherwise as the
Company may by resolution of the Members prescribe, provided that no share
shall be issued at a discount except in accordance with the Law.
The Board and the Company may not, without the prior written consent of the
Majority Holders, issue, allot or otherwise dispose of any Preferred Shares
other than those contemplated by and specified in Schedule 2 to these
Articles.
3. Redemption and Purchase of Shares
3.1 Subject to the Law and to prior written consent being obtained from
the Majority Holders for the issuance of any shares which are senior
in rights in any respect to the Convertible Preferred Shares, the
Preferred Shares or the Common Shares, the Company is authorised to
issue shares which are to be redeemed or are liable to be redeemed at
the option of the Company or a Member.
3.2 The Company is hereby authorised to make payments in respect of the
redemption of its shares out of capital or out of any other account or
fund which can be authorised for this purpose in accordance with the
Law. The Convertible Preferred Shares may be redeemed on the basis set
out in Schedule 2 to these Articles.
3.3 The redemption price of a redeemable share, or the method of
calculation thereof, shall, in the absence of any provisions set out
in the terms of the shares in question, be fixed by the Directors at
or before the time of issue. The redemption price of the Convertible
Preferred Shares shall be determined on the basis set out in Schedule
2 to these Articles.
3.4 Every share certificate representing a redeemable share shall indicate
that the share is redeemable.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 5
3.5 In the case of shares redeemable at the option of a Member a
redemption notice from a Member may not be revoked without the
agreement of the Directors.
3.6 At the time or in the circumstances specified for redemption the
redeemed shares shall be cancelled and shall cease to confer on the
relevant Member any right or privilege, without prejudice to the right
to receive the redemption price, which price shall become payable so
soon as it can with due despatch be calculated, but subject to
surrender of the relevant share certificate for cancellation (and
reissue in respect of any balance).
3.7 The redemption price may be paid in any manner authorised by these
Articles for the payment of dividends.
3.8 A delay in payment of the redemption price shall not affect the
redemption but, in the case of a delay of more than thirty days,
interest shall be paid for the period from the due date until actual
payment at a rate which the Directors, after due enquiry, estimate to
be representative of the rates being offered by Class A banks in the
Cayman Islands for thirty day deposits in the same currency where no
provision as to the rate of interest has been included in the terms of
the shares in question.
3.9 The Directors may exercise as they think fit the powers conferred on
the Company by Section 37(5) of the Law (payment out of capital).
3.10 Subject as aforesaid, the Directors may determine, as they think fit
all questions that may arise concerning the manner in which the
redemption of the shares shall or may be effected.
3.11 No share may be redeemed unless it is fully paid-up.
3.12 So long as any of the Convertible Preferred Shares are outstanding, no
Company Junior Shares shall be redeemed or repurchased. Subject
thereto, the Board may exercise all the powers of the Company to
purchase all or any part of its own shares in accordance with the Law.
Shares purchased by the Company shall be cancelled and shall cease to
confer any right or privilege on the Member from whom the shares are
purchased.
3.13 The Directors may redeem or cause the Company to redeem all or some of
the Convertible Preferred Shares held by any person if, and only if,
such redemption is necessary to give effect to the conversion mechanic
for the Convertible Preferred Shares set out in Schedule 2 to these
Articles, which mechanic may be implemented by means of the compulsory
redemption of the relevant Convertible Preferred Shares and the
immediate re-subscription on behalf of the relevant Members of the
redemption proceeds in paying up relevant Common Shares.
4. Rights Attaching to Shares
Subject to Article 2, the Memorandum and any resolution of the Members
to the contrary and without prejudice to any special rights conferred
thereby on the holders of any other shares or class of shares, the
share capital of the Company shall be divided into Common Shares (the
rights of which are set out in Schedule 1 to these Articles) and
Preferred Shares, including Convertible Preferred Shares the rights of
which are set out in Schedule 2 to these Articles.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 6
5. Calls on Shares
5.1 The Board may make such calls as it thinks fit upon the Members in
respect of any monies (whether in respect of nominal value or premium)
unpaid on the shares allotted to or held by
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 7
such Members and, if a call is not paid on or before the day appointed
for payment thereof, the Member may at the discretion of the Board be
liable to pay the Company interest on the amount of such call at such
rate as the Board may determine, from the date when such call was
payable up to the actual date of payment. The Board may differentiate
between the holders as to the amount of calls to be paid and the times
of payment of such calls.
5.2 The Company may accept from any Member the whole or a part of the
amount remaining unpaid on any shares held by him, although no part of
that amount has been called up.
5.3 The Company may make arrangements on the issue of shares for a
difference between the Members in the amounts and times of payments of
calls on their shares.
6. Joint and Several Liability to Pay Calls
The joint holders of a share shall be jointly and severally liable to pay
all calls in respect thereof.
7. Forfeiture of Shares
7.1 If any Member fails to pay, on the day appointed for payment thereof,
any call in respect of any share allotted to or held by such Member,
the Board may, at any time thereafter during such time as the call
remains unpaid, direct the Secretary to forward such Member a notice
in writing in the form, or as near thereto as circumstances admit, of
the following:
Notice of Liability to Forfeiture for Non-Payment of Call
Xinhua Finance Media Limited (the "Company")
You have failed to pay the call of [amount of call] made on the
[_____] day of [__________], 200[_], in respect of the [number]
share(s) [number in figures] standing in your name in the Register of
Members of the Company, on the [_____] day of [__________], 200[_],
the day appointed for payment of such call. You are hereby notified
that unless you pay such call together with interest thereon at the
rate of [_____] per annum computed from the said [_____] day of
[__________], 200[_] at the registered office of the Company the
share(s) will be liable to be forfeited.
Dated this [_____] day of [__________], 200[_]
----------------------------------------------
[Signature of Secretary] By Order of the Board
7.2 If the requirements of such notice are not complied with, any such
share may at any time thereafter before the payment of such call and
the interest due in respect thereof be forfeited by a resolution of
the Board to that effect, and such share shall thereupon become the
property of the Company and may be disposed of as the Board shall
determine. Without limiting the generality of the foregoing, the
disposal may take place by sale, repurchase, redemption or any other
method of disposal permitted by and consistent with these Articles and
the Law.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 8
7.3 A Member whose share or shares have been forfeited as aforesaid shall,
notwithstanding such forfeiture, be liable to pay to the Company all
calls owing on such share or shares at the time of the forfeiture and
all interest due thereon.
7.4 The Board may accept the surrender of any shares which it is in a
position to forfeit on such terms and conditions as may be agreed.
Subject to those terms and conditions, a surrendered share shall be
treated as if it had been forfeited.
8. Share Certificates
8.1 Every Member shall be entitled to a certificate under the seal of the
Company (or a facsimile thereof) specifying the number and, where
appropriate, the class of shares held by such Member and whether the
same are fully paid up and, if not, how much has been paid thereon.
The Board may by resolution determine, either generally or in a
particular case, that any or all signatures on certificates may be
printed thereon or affixed by mechanical means.
8.2 If any share certificate shall be proved to the satisfaction of the
Board to have been worn out, lost, mislaid, or destroyed the Board may
cause a new certificate to be issued and request an indemnity for the
lost certificate if it sees fit.
8.3 Share certificates may not be issued in bearer form.
9. Fractional Shares
The Company may issue its shares in fractional denominations and deal with
such fractions to the same extent as its whole shares and shares in
fractional denominations shall have in proportion to the respective
fractions represented thereby all of the rights of whole shares including
(but without limiting the generality of the foregoing) the right to vote,
to receive dividends and distributions and to participate in a winding-up.
REGISTRATION OF SHARES
10. Register of Members
The Board shall cause to be kept in one or more books a Register of Members
which may be kept outside the Cayman Islands at such place as the Directors
shall appoint and shall enter therein the following particulars:-
(a) the name and address of each Member, the number, and (where
appropriate) the class of shares held by such Member and the
amount paid or agreed to be considered as paid on such shares;
(b) the date on which each person was entered in the Register of
Members; and
(c) the date on which any person ceased to be a Member.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 9
11. Registered Holder Absolute Owner
11.1 The Company shall be entitled to treat the registered holder of any
share as the absolute owner thereof and accordingly shall not be bound
to recognise any equitable claim or other claim to, or interest in,
such share on the part of any other person.
11.2 No person shall be entitled to recognition by the Company as holding
any share upon any trust and the Company shall not be bound by, or be
compelled in any way to recognise, (even when having notice thereof)
any equitable, contingent, future or partial interest in any share or
any other right in respect of any share except an absolute right to
the entirety of the share in the holder. If, notwithstanding this
Article, notice of any trust is at the holder's request entered in the
Register or on a share certificate in respect of a share, then, except
as aforesaid:
(a) such notice shall be deemed to be solely for the holder's
convenience;
(b) the Company shall not be required in any way to recognise any
beneficiary, or the beneficiary, of the trust as having an
interest in the share or shares concerned;
(c) the Company shall not be concerned with the trust in any way, as
to the identity or powers of the trustees, the validity, purposes
or terms of the trust, the question of whether anything done in
relation to the shares may amount to a breach of trust or
otherwise; and
(d) the holder shall keep the Company fully indemnified against any
liability or expense which may be incurred or suffered as a
direct or indirect consequence of the Company entering notice of
the trust in the Register or on a share certificate and
continuing to recognise the holder as having an absolute right to
the entirety of the share or shares concerned.
12. Transfer of Registered Shares
12.1 An instrument of transfer shall be in writing in the form of the
following, or as near thereto as circumstances admit, or in such other
form as the Board may accept:
Transfer of a Share or Shares
Xinhua Finance Media Limited (the "Company")
FOR VALUE RECEIVED __________________ [amount], I, [name of
transferor] hereby sell, assign and transfer unto [transferee] of
[address], [number] of shares of the Company.
DATED this [__] day of [____], 200[_]
Signed by: In the presence of:
------------------------------------- ----------------------------------------
Transferor Witness
------------------------------------- ----------------------------------------
Transferee Witness
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 10
12.2 Such instrument of transfer shall be signed by or on behalf of the
transferor and transferee, provided that, in the case of a fully paid
share, the Board may accept the instrument signed by or on behalf of
the transferor alone. The transferor shall be deemed to remain the
holder of such share until the same has been transferred to the
transferee in the Register of Members.
12.3 The Board may refuse to recognise any instrument of transfer unless it
is accompanied by the certificate in respect of the shares to which it
relates and by such other evidence as the Board may reasonably require
to show the right of the transferor to make the transfer.
12.4 The joint holders of any share may transfer such share to one or more
of such joint holders, and the surviving holder or holders of any
share previously held by them jointly with a deceased Member may
transfer any such share to the executors or administrators of such
deceased Member.
12.5 The Board may in its absolute discretion and without assigning any
reason therefor refuse to register the transfer of a share. If the
Board refuses to register a transfer of any share the Secretary shall,
within three months after the date on which the transfer was lodged
with the Company, send to the transferor and transferee notice of the
refusal.
13. Transmission of Registered Shares
13.1 In the case of the death of a Member, the survivor or survivors where
the deceased Member was a joint holder, and the legal personal
representatives of the deceased Member where the deceased Member was a
sole holder, shall be the only persons recognised by the Company as
having any title to the deceased Member's interest in the shares.
Nothing herein contained shall release the estate of a deceased joint
holder from any liability in respect of any share which had been
jointly held by such deceased Member with other persons. Subject to
the provisions of Section 39 of the Law, for the purpose of this
Article, legal personal representative means the executor or
administrator of a deceased Member or such other person as the Board
may, in its absolute discretion, decide as being properly authorised
to deal with the shares of a deceased Member.
13.2 Any person becoming entitled to a share in consequence of the death or
bankruptcy of any Member may be registered as a Member upon such
evidence as the Board may deem sufficient or may elect to nominate
some person to be registered as a transferee of such share, and in
such case the person becoming entitled shall execute in favour of such
nominee an instrument of transfer in writing in the form, or as near
thereto as circumstances admit, of the following:
Transfer by a Person Becoming Entitled on Death/Bankruptcy of a Member
Xinhua Finance Media Limited (the "Company")
I/We, having become entitled in consequence of the [death/bankruptcy]
of [name and address of deceased Member] to [number] share(s) standing
in the Register of Members of the Company in the name of the said
[name of deceased/bankrupt Member] instead of being registered
myself/ourselves, elect to have [name of transferee] (the
"Transferee") registered as a transferee of such share(s) and I/we do
hereby accordingly transfer the said share(s) to the Transferee to
hold the same unto the Transferee, his or her executors,
administrators and assigns, subject to the conditions on which the
same were held at the time of the execution hereof; and the Transferee
does hereby agree to take the said share(s) subject to the same
conditions.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 11
DATED this [_] day of [_____], 200[_]
Signed by: In the presence of:
------------------------------------- ----------------------------------------
Transferor Witness
------------------------------------- ----------------------------------------
Transferee Witness
13.3 On the presentation of the foregoing materials to the Board,
accompanied by such evidence as the Board may require to prove the
title of the transferor, the transferee shall be registered as a
Member. Notwithstanding the foregoing, the Board shall, in any case,
have the same right to decline or suspend registration as it would
have had in the case of a transfer of the share by that Member before
such Member's death or bankruptcy, as the case may be.
13.4 Where two or more persons are registered as joint holders of a share
or shares, then in the event of the death of any joint holder or
holders the remaining joint holder or holders shall be absolutely
entitled to the said share or shares and the Company shall recognise
no claim in respect of the estate of any joint holder except in the
case of the last survivor of such joint holders.
ALTERATION OF SHARE CAPITAL
14. Power to Alter Capital
14.1 Subject to the Law and subject to prior written consent being obtained
from the Majority Holders, the Company may from time to time by
ordinary resolution alter the conditions of the Memorandum to increase
its share capital by new shares of such amount as it thinks expedient
or, if the Company has shares without par value, increase its share
capital by such number of shares without nominal or par value, or
increase the aggregate consideration for which its shares may be
issued, as it thinks expedient.
14.2 Subject to the Law, the Company may from time to time by ordinary
resolution alter the conditions of the Memorandum to:
(a) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
(b) subdivide its shares or any of them into shares of an amount
smaller than that fixed by the Memorandum; or
(c) cancel shares which at the date of the passing of the resolution
have not been taken or agreed to be taken by any person, and
diminish the amount of its share capital by the amount of the
shares so cancelled or, in the case of shares without par value,
diminish the number of shares into which its capital is divided.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 12
14.3 For the avoidance of doubt it is declared that paragraph 14.2(a) and
(b) above do not apply if at any time the shares of the Company have
no par value.
14.4 Subject to the Law, the Company may from time to time by Special
Resolution reduce its share capital in any way or, subject to Article
77, alter any conditions of the Memorandum relating to share capital.
15. Variation of Rights Attaching to Shares
The rights attached to the Convertible Preferred Shares may only be varied
with the prior written consent of the Majority Holders. Subject thereto,
if, at any time, the share capital is divided into different classes of
shares, the rights attached to any class (unless otherwise provided by the
terms of issue of the shares of that class) may, whether or not the Company
is being wound-up, be varied with the consent in writing of the holders of
three-fourths of the issued shares of that class or with the sanction of a
resolution passed by a majority of the votes cast at a separate general
meeting of the holders of the shares of the class at which meeting the
necessary quorum shall be two persons at least holding or representing by
proxy one-third of the issued shares of the class. The rights conferred
upon the holders of the shares of any class issued with preferred or other
rights shall not, unless otherwise expressly provided by the terms of issue
of the shares of that class, be deemed to be varied by the creation or
issue of further shares ranking pari passu therewith.
DIVIDENDS AND CAPITALISATION
16. Dividends
16.1 The written consent of the Majority Holders must be obtained before
any dividends can be paid on any shares other than the Convertible
Preferred Shares. Subject thereto, the Board may, subject to these
Articles and the Law and any direction of the Company in general
meeting, declare a dividend to be paid to the Members or any class of
them, in proportion to the number of shares held by them, and such
dividend may be paid in cash or wholly or partly in specie in which
case the Board may fix the value for distribution in specie of any
assets. No unpaid dividend shall bear interest as against the Company.
16.2 Dividends may be declared and paid out of profits of the Company,
realised or unrealised, or from any reserve set aside from profits
which the Directors determine is no longer needed, or not in the same
amount. Dividends may also be declared and paid out of share premium
account or any other fund or account which can be authorised for this
purpose in accordance with the Law.
16.3 With the sanction of an ordinary resolution of the Company, the
Directors may determine that a dividend shall be paid wholly or partly
by the distribution of specific assets (which may consist of the
shares or securities of any other company) and may settle all
questions concerning such distribution. Without limiting the foregoing
generally, the Directors may fix the value of such specific assets,
may determine that cash payments shall be made to some Members in lieu
of specific assets and may vest any such specific assets in trustees
on such terms as the Directors think fit.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 13
16.4 The Company may pay dividends in proportion to the amount paid up on
each share where a larger amount is paid up on some shares than on
others.
16.5 The Board may declare and make such other distributions (in cash or in
specie) to the Members as may be lawfully made out of the assets of
the Company. No unpaid distribution shall bear interest as against the
Company.
16.6 The Board may fix any date as the record date for determining the
Members entitled to receive any dividend or other distribution, but,
unless so fixed, the record date shall be the date of the Directors'
resolution declaring same.
17. Power to Set Aside Profits
17.1 The Board may, before declaring a dividend, set aside out of the
surplus or profits of the Company, such sum as it thinks proper as a
reserve to be used to meet contingencies or for equalising dividends
or for any other purpose. Pending application, such sums may be
employed in the business of the Company or invested, and need not be
kept separate from other assets of the Company. The Directors may
also, without placing the same to reserve, carry forward any profit
which they decide not to distribute.
17.2 Subject to any direction from the Company in general meeting, the
Directors may on behalf of the Company exercise all the powers and
options conferred on the Company by the Law in regard to the Company's
share premium account.
18. Method of Payment
18.1 Any dividend, interest, or other monies payable in cash in respect of
the shares may be paid by cheque or draft sent through the post
directed to the Member at such Member's address in the Register of
Members, or to such person and to such address as the holder may in
writing direct.
18.2 In the case of joint holders of shares, any dividend, interest or
other monies payable in cash in respect of shares may be paid by
cheque or draft sent through the post directed to the address of the
holder first named in the Register of Members, or to such person and
to such address as the joint holders may in writing direct. If two or
more persons are registered as joint holders of any shares any one can
give an effectual receipt for any dividend paid in respect of such
shares.
18.3 The Board may deduct from the dividends or distributions payable to
any Member all monies due from such Member to the Company on account
of calls or otherwise.
19. Capitalisation
19.1 The Board may resolve to capitalise any sum for the time being
standing to the credit of any of the Company's share premium or other
reserve accounts or to the credit of the profit and loss account or
otherwise available for distribution by applying such sum in paying up
unissued shares to be allotted as fully paid bonus shares pro rata to
the Members.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 14
19.2 The Board may resolve to capitalise any sum for the time being
standing to the credit of a reserve account or sums otherwise
available for dividend or distribution by applying such amounts in
paying up in full partly paid or nil paid shares of those Members who
would have been entitled to such sums if they were distributed by way
of dividend or distribution.
MEETINGS OF MEMBERS
20. Annual General Meetings
The Company may in each year hold a general meeting as its annual general
meeting. The annual general meeting of the Company may be held at such time
and place as the Chairman or any two Directors or any Director and the
Secretary or the Board shall appoint.
21. Extraordinary General Meetings
21.1 General meetings other than annual general meetings shall be called
extraordinary general meetings.
21.2 The Chairman or any two Directors or any Director and the Secretary or
the Board may convene an extraordinary general meeting of the Company
whenever in their judgment such a meeting is necessary.
22. Requisitioned General Meetings
22.1 The Board shall, on the requisition of Members holding at the date of
the deposit of the requisition not less than one-tenth of such of the
paid-up share capital of the Company as at the date of the deposit
carries the right to vote at general meetings of the Company,
forthwith proceed to convene an extraordinary general meeting of the
Company. To be effective the requisition shall state the objects of
the meeting, shall be in writing, signed by the requisitionists, and
shall be deposited at the Registered Office. The requisition may
consist of several documents in like form each signed by one or more
requisitionists.
22.2 If the Directors do not within twenty-one days from the date of the
requisition duly proceed to call an extraordinary general meeting, the
requisitionists, or any of them representing more than one half of the
total voting rights of all of them, may themselves convene an
extraordinary general meeting; but any meeting so called shall not be
held more than ninety days after the requisition. An extraordinary
general meeting called by requisitionists shall be called in the same
manner, as nearly as possible, as that in which general meetings are
to be called by the Directors.
23. Notice
23.1 At least five days' notice of an annual general meeting shall be given
to each Member entitled to attend and vote thereat, stating the date,
place and time at which the meeting is to be held and if different,
the record date for determining Members entitled to attend and vote at
the general meeting, and, as far as practicable, the other business to
be conducted at the meeting.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 15
23.2 At least five days' notice of an extraordinary general meeting shall
be given to each Member entitled to attend and vote thereat, stating
the date, place and time at which the meeting is to be held and the
general nature of the business to be considered at the meeting.
23.3 The Board may fix any date as the record date for determining the
Members entitled to receive notice of and to vote at any general
meeting of the Company but, unless so fixed, as regards the
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 16
entitlement to receive notice of a meeting or notice of any other
matter, the record date shall be the date of despatch of the notice
and, as regards the entitlement to vote at a meeting, and any
adjournment thereof, the record date shall be the date of the original
meeting.
23.4 A general meeting of the Company shall, notwithstanding that it is
called on shorter notice than that specified in these Articles, be
deemed to have been properly called if it is so agreed by (i) all the
Members entitled to attend and vote thereat in the case of an annual
general meeting; and (ii) in the case of an extraordinary general
meeting, by seventy-five percent of the Members entitled to attend and
vote thereat.
23.5 The accidental omission to give notice of a general meeting to, or the
non-receipt of a notice of a general meeting by, any person entitled
to receive notice shall not invalidate the proceedings at that
meeting.
24. Giving Notice
24.1 A notice may be given by the Company to any Member either by
delivering it to such Member in person or by sending it to such
Member's address in the Register of Members or to such other address
given for the purpose. For the purposes of this Article, a notice may
be sent by letter mail, courier service, cable, telex, telecopier,
facsimile, electronic mail or other mode of representing words in a
legible form.
24.2 Any notice required to be given to a Member shall, with respect to any
shares held jointly by two or more persons, be given to whichever of
such persons is named first in the Register of Members and notice so
given shall be sufficient notice to all the holders of such shares.
24.3 Any notice shall be deemed to have been served at the time when the
same would be delivered in the ordinary course of transmission and, in
proving such service, it shall be sufficient to prove that the notice
was properly addressed and prepaid, if posted, and the time when it
was posted, delivered to the courier or to the cable company or
transmitted by telex, facsimile, electronic mail, or such other method
as the case may be.
25. Postponement of General Meeting
The Board may postpone any general meeting called in accordance with the
provisions of these Articles provided that notice of postponement is given
to each Member before the time for such meeting. Fresh notice of the date,
time and place for the postponed meeting shall be given to each member in
accordance with the provisions of these Articles.
26. Participating in Meetings by Telephone
Members may participate in any general meeting by means of such telephone,
electronic or other communication facilities as permit all persons
participating in the meeting to communicate with each other simultaneously
and instantaneously, and participation in such a meeting shall constitute
presence in person at such meeting.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 17
27. Quorum at General Meetings
27.1 At any general meeting of the Company two or more persons present in
person and representing in person or by proxy in excess of 50% of the
total issued voting shares (including Convertible Preferred Shares) in
the Company throughout the meeting shall form a quorum for the
transaction of business, provided that (i) if the Company shall at any
time have only one Member, one Member present in person or by proxy
shall form a quorum for the transaction of business at any general
meeting of the Company held during such time and (ii) if the business
of the general meeting includes considering a Special Resolution to
wind-up the Company or to alter or add to these Articles or the
Memorandum, the quorum must include the Majority Holders.
27.2 Except where the business of the general meeting includes considering
a Special Resolution to wind-up the Company, or to alter or add to
these Articles or the Memorandum, the quorum must include the Majority
Holders, if within half an hour from the time appointed for the
meeting a quorum is not present, the meeting shall stand adjourned to
the same day one week later, at the same time and place or to such
other day, time or place as the Board may determine.
28. Chairman to Preside
Unless otherwise agreed by a majority of those attending and entitled to
vote thereat, the Chairman, if there be one, shall act as chairman at all
meetings of the Members at which such person is present. In his absence a
chairman shall be appointed or elected by those present at the meeting and
entitled to vote.
29. Voting on Resolutions
29.1 Subject to the provisions of the Law and these Articles, any question
proposed for the consideration of the Members at any general meeting
shall be decided by the affirmative votes of the requisite majority of
the votes cast in accordance with the provisions of these Articles and
the Law.
29.2 No Member shall be entitled to vote at a general meeting unless such
Member has paid all the calls on all shares held by such Member.
29.3 At any general meeting a resolution put to the vote of the meeting
shall, in the first instance, be voted upon by a show of hands and,
subject to any rights or restrictions for the time being lawfully
attached to any class of shares and subject to the provisions of these
Articles, every Member entitled to vote and present in person or by
proxy at such meeting shall be entitled to one vote and may cast such
vote by raising his hand.
29.4 At any general meeting if an amendment shall be proposed to any
resolution under consideration and the chairman of the meeting shall
rule on whether the proposed amendment is out of order, the
proceedings on the substantive resolution shall not be invalidated by
any error in such ruling.
29.5 At any general meeting a declaration by the chairman of the meeting
that a question proposed for consideration has, on a show of hands,
been carried, or carried unanimously, or by a particular majority, or
lost, and an entry to that effect in a book containing the minutes of
the proceedings
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 18
of the Company shall, subject to the provisions of these Articles, be
conclusive evidence of that fact.
30. Power to Demand a Vote on a Poll
30.1 Notwithstanding the foregoing, a poll may be demanded by the Chairman
or at least one Member.
30.2 Where a poll is demanded, subject to any rights or restrictions for
the time being lawfully attached to any class of shares, every person
present at such meeting shall have one vote for each share of which
such person is the holder or for which such person holds a proxy and
such vote shall be counted by ballot as described herein, or in the
case of a general meeting at which one or more Members are present by
telephone, in such manner as the chairman of the meeting may direct
and the result of such poll shall be deemed to be the resolution of
the meeting at which the poll was demanded and shall replace any
previous resolution upon the same matter which has been the subject of
a show of hands. A person entitled to more than one vote need not use
all his votes or cast all the votes he uses in the same way.
30.3 A poll demanded for the purpose of electing a chairman of the meeting
or on a question of adjournment shall be taken forthwith and a poll
demanded on any other question shall be taken in such manner and at
such time and place at such meeting as the chairman of the meeting may
direct and any business other than that upon which a poll has been
demanded may be proceeded with pending the taking of the poll.
30.4 Where a vote is taken by poll, each person present and entitled to
vote shall be furnished with a ballot paper on which such person shall
record his vote in such manner as shall be determined at the meeting
having regard to the nature of the question on which the vote is
taken, and each ballot paper shall be signed or initialed or otherwise
marked so as to identify the voter and the registered holder in the
case of a proxy. At the conclusion of the poll, the ballot papers
shall be examined and counted by a committee of not less than two
Members or proxy holders appointed by the chairman for the purpose and
the result of the poll shall be declared by the chairman.
31. Voting by Joint Holders of Shares
In the case of joint holders, the vote of the senior who tenders a vote
(whether in person or by proxy) shall be accepted to the exclusion of the
votes of the other joint holders, and for this purpose seniority shall be
determined by the order in which the names stand in the Register of
Members.
32. Instrument of Proxy
32.1 An instrument appointing a proxy shall be in writing or transmitted by
electronic mail in substantially the following form or such other form
as the chairman of the meeting shall accept:
Proxy
Xinhua Finance Media Limited (the "Company")
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 19
I/We, [insert names here], being a Member of the Company with [number]
shares, HEREBY APPOINT [name] of [address] or failing him, [name] of
[address] to be my/our proxy to vote for me/us at the meeting of the
Members held on the [_] day of [_________], 200[_] and at any
adjournment thereof. (Any restrictions on voting to be inserted here.)
Signed this [__] day of [___], 200[_]
-------------------------------------
Member(s)
32.2 The instrument of proxy shall be signed or, in the case of a
transmission by electronic mail, electronically signed in a manner
acceptable to the chairman, by the appointor or by the appointor's
attorney duly authorised in writing, or if the appointor is a
corporation, either under its seal or signed or, in the case of a
transmission by electronic mail, electronically signed in a manner
acceptable to the chairman, by a duly authorised officer or attorney.
32.3 A member who is the holder of two or more shares may appoint more than
one proxy to represent him and vote on his behalf.
32.4 The decision of the chairman of any general meeting as to the validity
of any appointment of a proxy shall be final.
33. Representation of Corporate Member
33.1 A corporation which is a Member may, by written instrument, authorise
such person or persons as it thinks fit to act as its representative
at any meeting of the Members and any person so authorised shall be
entitled to exercise the same powers on behalf of the corporation
which such person represents as that corporation could exercise if it
were an individual Member, and that Member shall be deemed to be
present in person at any such meeting attended by its authorised
representative or representatives.
33.2 Notwithstanding the foregoing, the chairman of the meeting may accept
such assurances as he thinks fit as to the right of any person to
attend and vote at general meetings on behalf of a corporation which
is a Member.
34. Adjournment of General Meeting
The chairman of a general meeting may, with the consent of a majority
in number of those present at any general meeting at which a quorum is
present, and shall if so directed, adjourn the meeting. Unless the
meeting is adjourned for more than 60 days fresh notice of the date,
time and place for the resumption of the adjourned meeting shall be
given to each Member entitled to attend and vote thereat, in
accordance with the provisions of these Articles.
35. Written Resolutions
35.1 Anything which may be done by resolution of the Company in general
meeting or by resolution of a meeting of any class of the Members may,
without a meeting and without any previous notice being required, be
done by resolution in writing signed by, or in the case of a Member
that is a corporation whether or not a company within the meaning of
the Law, on behalf of, all the
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 20
Members who at the date of the resolution would be entitled to attend
the meeting and vote on the resolution.
35.2 A resolution in writing may be signed by, or in the case of a Member
that is a corporation whether or not a company within the meaning of
the Law, on behalf of, all the Members, or all the Members of the
relevant class thereof, in as many counterparts as may be necessary.
35.3 A resolution in writing made in accordance with this Article is as
valid as if it had been passed by the Company in general meeting or by
a meeting of the relevant class of Members, as the case may be, and
any reference in any Article to a meeting at which a resolution is
passed or to Members voting in favour of a resolution shall be
construed accordingly.
35.4 A resolution in writing made in accordance with this Article shall
constitute minutes for the purposes of the Law.
35.5 For the purposes of this Article, the date of the resolution is the
date when the resolution is signed by, or in the case of a Member that
is a corporation whether or not a company within the meaning of the
Law, on behalf of, the last Member to sign and any reference in any
Article to the date of passing of a resolution is, in relation to a
resolution made in accordance with this Article, a reference to such
date.
36. Directors Attendance at General Meetings
The Directors of the Company shall be entitled to receive notice of, attend
and be heard at any general meeting.
DIRECTORS AND OFFICERS
37. Election of Directors
37.1 The Board shall be elected or appointed in writing in the first place
by the subscribers to the Memorandum or by a majority of them. There
shall be no shareholding qualification for Directors unless prescribed
by Special Resolution.
37.2 The Directors may from time to time appoint any person to be a
Director, either to fill a casual vacancy or as an addition to the
existing Directors, subject to any upper limit on the number of
Directors prescribed pursuant to this Article.
37.3 For so long as the Parent is a holder of Common Shares, it shall have
the exclusive right by way of written notice to the Company to appoint
such number of Directors as constitute a majority of the Board.
Subject to the foregoing, the Members may from time to time by
ordinary resolution appoint any person to be a Director.
38. Number of Directors
The Board shall consist of not less than one Director or such number in
excess thereof as the Board may determine.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 21
39. Term of Office of Directors
An appointment of a Director may be on terms that the Director shall
automatically retire from office (unless he has sooner vacated office) at
the next or a subsequent annual general meeting or upon any specified event
or after any specified period; but no such term shall be implied in the
absence of express provision.
40. Alternate Directors
40.1 A Director may at any time appoint any person (including another
Director) to be his Alternate Director and may at any time terminate
such appointment. An appointment and a termination of appointment
shall be by notice in writing signed by the Director and deposited at
the Registered Office or delivered at a meeting of the Directors.
40.2 The appointment of an Alternate Director shall determine on the
happening of any event which, if he were a Director, would cause him
to vacate such office or if his appointor ceases for any reason to be
a Director.
40.3 An Alternate Director shall be entitled to receive notices of meetings
of the Directors and shall be entitled to attend and vote as a
Director at any such meeting at which his appointor is not personally
present and generally at such meeting to perform all the functions of
his appointor as a Director; and for the purposes of the proceedings
at such meeting these Articles shall apply as if he (instead of his
appointor) were a Director, save that he may not himself appoint an
Alternate Director or a proxy.
40.4 If an Alternate Director is himself a Director or attends a meeting of
the Directors as the Alternate Director of more than one Director, his
voting rights shall be cumulative.
40.5 Unless the Directors determine otherwise, an Alternate Director may
also represent his appointor at meetings of any committee of the
Directors on which his appointor serves; and the provisions of this
Article shall apply equally to such committee meetings as to meetings
of the Directors.
40.6 If so authorised by an express provision in his notice of appointment,
an Alternate Director may join in a written resolution of the
Directors adopted pursuant to these Articles and his signature of such
resolution shall be as effective as the signature of his appointor.
40.7 Save as provided in these Articles an Alternate Director shall not, as
such, have any power to act as a Director or to represent his
appointor and shall not be deemed to be a Director for the purposes of
these Articles.
40.8 A Director who is not present at a meeting of the Directors, and whose
Alternate Director (if any) is not present at the meeting, may be
represented at the meeting by a proxy duly appointed, in which event
the presence and vote of the proxy shall be deemed to be that of the
Director. All the provisions of these Articles regulating the
appointment of proxies by Members shall apply equally to the
appointment of proxies by Directors.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 22
41. Removal of Directors
The Members may from time to time by ordinary resolution remove any
Director (other than a Director appointed by the Parent) from office,
whether or not appointing another in his stead. The Parent shall be
entitled by written notice to the Company to remove a Director appointed by
it.
42. Vacancy in the Office of Director
The office of Director shall be vacated if the Director:
(a) is removed from office pursuant to these Articles;
(b) dies or becomes bankrupt, or makes any arrangement or composition
with his creditors generally;
(c) is or becomes of unsound mind or an order for his detention is
made under the Mental Health Law of the Cayman Islands or any
analogous law of a jurisdiction outside the Cayman Islands, or
dies; or
(d) resigns his office by notice in writing to the Company.
43. Remuneration of Directors
The remuneration (if any) of the Directors shall, subject to any direction
that may be given by the Company in general meeting, be determined by the
Directors as they may from time to time determine and shall be deemed to
accrue from day to day. The Directors may also be paid all travel, hotel
and other expenses properly incurred by them in attending and returning
from the meetings of the Board, any committee appointed by the Board,
general meetings of the Company, or in connection with the business of the
Company or their duties as Directors generally.
44. Defect in Appointment of Director
All acts done in good faith by the Board or by a committee of the Board or
by any person acting as a Director shall, notwithstanding that it be
afterwards discovered that there was some defect in the appointment of any
Director or person acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed
and was qualified to be a Director.
45. Directors to Manage Business
The business of the Company shall be managed and conducted by the Board. In
managing the business of the Company, the Board may, subject to the
restrictions on the Company and the rights of the Convertible Preferred
Shares set out in Schedule 2 to these Articles, exercise all such powers of
the Company as are not, by the Law or by these Articles, required to be
exercised by the Company in general meeting subject, nevertheless, to these
Articles, the provisions of the Law and to such directions as may be
prescribed by the Company in general meeting.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 23
46. Powers of the Board of Directors
Without limiting the generality of Article 45, the Board may:
(a) appoint, suspend, or remove any manager, secretary, clerk, agent
or employee of the Company and may fix their remuneration and
determine their duties;
(b) exercise all the powers of the Company to borrow money and to
mortgage or charge its undertaking, property and uncalled
capital, or any part thereof, and may issue debentures,
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 24
debenture stock and other securities whether outright or as
security for any debt, liability or obligation of the Company or
any third party;
(c) appoint one or more Directors to the office of managing director
or chief executive officer of the Company, who shall, subject to
the control of the Board, supervise and administer all of the
general business and affairs of the Company;
(d) appoint a person to act as manager of the Company's day-to-day
business and may entrust to and confer upon such manager such
powers and duties as it deems appropriate for the transaction or
conduct of such business;
(e) by power of attorney, appoint any company, firm, person or body
of persons, whether nominated directly or indirectly by the
Board, to be an attorney of the Company for such purposes and
with such powers, authorities and discretions (not exceeding
those vested in or exercisable by the Board) and for such period
and subject to such conditions as it may think fit and any such
power of attorney may contain such provisions for the protection
and convenience of persons dealing with any such attorney as the
Board may think fit and may also authorise any such attorney to
sub-delegate all or any of the powers, authorities and
discretions so vested in the attorney. Such attorney may, if so
authorised under the seal of the Company, execute any deed or
instrument under such attorney's person seal with the same effect
as the affixation of the seal of the Company;
(f) procure that the Company pays all expenses incurred in promoting
and incorporating the Company;
(g) delegate any of its powers (including the power to sub-delegate)
to a committee of one or more persons appointed by the Board and
every such committee shall conform to such directions as the
Board shall impose on them. Subject to any directions or
regulations made by the Directors for this purpose, the meetings
and proceedings of any such committee shall be governed by the
provisions of these Articles regulating the meetings and
proceedings of the Board, including provisions for written
resolutions;
(h) delegate any of its powers (including the power to sub-delegate)
to any person on such terms and in such manner as the Board sees
fit;
(i) present any petition and make any application in connection with
the liquidation or reorganisation of the Company;
(j) in connection with the issue of any share, pay such commission
and brokerage as may be permitted by law; and
(k) authorise any company, firm, person or body of persons to act on
behalf of the Company for any specific purpose and in connection
therewith to execute any agreement, document or instrument on
behalf of the Company.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 25
47. Register of Directors and Officers
47.1 The Board shall cause to be kept in one or more books at the
registered office of the Company a Register of Directors and Officers
in accordance with the Law and shall enter therein the following
particulars with respect to each Director and Officer:
(a) first name and surname; and
(b) address.
47.2 The Board shall, within the period of thirty days from the occurrence
of:-
(a) any change among its Directors and Officers; or
(b) any change in the particulars contained in the Register of
Directors and Officers,
cause to be entered on the Register of Directors and Officers the
particulars of such change and the date on which such change occurred,
and shall notify the Registrar of Companies of any such change that
takes place.
48. Officers
The Officers shall consist of a Secretary and such additional Officers as
the Board may determine all of whom shall be deemed to be Officers for the
purposes of these Articles.
49. Appointment of Officers
The Secretary (and additional Officers, if any) shall be appointed by the
Board from time to time.
50. Duties of Officers
The Officers shall have such powers and perform such duties in the
management, business and affairs of the Company as may be delegated to them
by the Board from time to time.
51. Remuneration of Officers
The Officers shall receive such remuneration as the Board may determine.
52. Conflicts of Interest
52.1 Any Director, or any Director's firm, partner or any company with whom
any Director is associated, may act in any capacity for, be employed
by or render services to the Company and such Director or such
Director's firm, partner or company shall be entitled to remuneration
as if such Director were not a Director. Nothing herein contained
shall authorise a Director or Director's firm, partner or company to
act as Auditor to the Company.
52.2 A Director who is directly or indirectly interested in a contract or
proposed contract or arrangement with the Company shall declare the
nature of such interest as required by law.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 26
52.3 Following a declaration being made pursuant to this Article, and
unless disqualified by the chairman of the relevant Board meeting, a
Director may vote in respect of any contract or proposed contract or
arrangement in which such Director is interested and may be counted in
the quorum for such meeting.
53. Indemnification and Exculpation of Directors and Officers
53.1 The Directors, Officers and Auditors of the Company and any trustee
for the time being acting in relation to any of the affairs of the
Company and every former director, officer, auditor or trustee and
their respective heirs, executors, administrators, and personal
representatives (each of which persons being referred to in this
Article as an "indemnified party") shall be indemnified and secured
harmless out of the assets of the Company from and against all
actions, costs, charges, losses, damages and expenses which they or
any of them shall or may incur or sustain by or by reason of any act
done, concurred in or omitted in or about the execution of their duty,
or supposed duty, or in their respective offices or trusts, and no
indemnified party shall be answerable for the acts, receipts, neglects
or defaults of the others of them or for joining in any receipts for
the sake of conformity, or for any bankers or other persons with whom
any moneys or effects belonging to the Company shall or may be lodged
or deposited for safe custody, or for insufficiency or deficiency of
any security upon which any moneys of or belonging to the Company
shall be placed out on or invested, or for any other loss, misfortune
or damage which may happen in the execution of their respective
offices or trusts, or in relation thereto, PROVIDED THAT this
indemnity shall not extend to any matter in respect of any fraud or
dishonesty which may attach to any of the said persons. Each Member
agrees to waive any claim or right of action such Member might have,
whether individually or by or in the right of the Company, against any
Director or Officer on account of any action taken by such Director or
Officer, or the failure of such Director or Officer to take any action
in the performance of his duties with or for the Company, PROVIDED
THAT such waiver shall not extend to any matter in respect of any
fraud or dishonesty with may attach to such Director or Officer.
53.2 The Company may purchase and maintain insurance for the benefit of any
Director or Officer of the Company against any liability incurred by
him in his capacity as a Director or Officer of the Company or
indemnifying such Director or Officer in respect of any loss arising
or liability attaching to him by virtue of any rule of law in respect
of any negligence, default, breach of duty or breach of trust of which
the Director or Officer may be guilty in relation to the Company or
any subsidiary thereof.
MEETINGS OF THE BOARD OF DIRECTORS
54. Board Meetings
The Board may meet for the transaction of business, adjourn and otherwise
regulate its meetings as it sees fit. A resolution put to the vote at a
meeting of the Board shall be carried by the affirmative votes of a
majority of the votes cast and in the case of an equality of votes the
resolution shall fail.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 27
55. Notice of Board Meetings
A Director may, and the Secretary on the requisition of a Director shall,
at any time summon a meeting of the Board. Notice of a meeting of the Board
shall be deemed to be duly given to a Director if it is
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 28
given to such Director verbally (in person or by telephone) or otherwise
communicated or sent to such Director by post, cable, telex, telecopier,
facsimile, electronic mail or other mode of representing words in a legible
form at such Director's last known address or any other address given by
such Director to the Company for this purpose.
56. Participation in Meetings by Telephone
Directors may participate in any meeting of the Board by means of such
telephone, electronic or other communication facilities as permit all
persons participating in the meeting to communicate with each other
simultaneously and instantaneously, and participation in such a meeting
shall constitute presence in person at such meeting.
57. Quorum at Board Meetings
The quorum necessary for the transaction of business at a meeting of the
Board shall be two Directors, provided that if there is only one Director
for the time being in office the quorum shall be one.
58. Board to Continue in the Event of Vacancy
The Board may act notwithstanding any vacancy in its number.
59. Chairman to Preside
Unless otherwise agreed by a majority of the Directors attending, the
Chairman, if there be one, shall act as chairman at all meetings of the
Board at which such person is present. In his absence a chairman shall be
appointed or elected by the Directors present at the meeting.
60. Written Resolutions
60.1 Anything which may be done by resolution of the Directors may, without
a meeting and without any previous notice being required, be done by
resolution in writing signed by, or in the case of a Director that is
a corporation whether or not a company within the meaning of the Law,
on behalf of, all the Directors.
60.2 A resolution in writing may be signed by, or in the case of a Director
that is a corporation whether or not a company within the meaning of
the Law, on behalf of, all the Directors in as many counterparts as
may be necessary.
60.3 A resolution in writing made in accordance with this Article is as
valid as if it had been passed by the Directors in a directors'
meeting, and any reference in any Article to a meeting at which a
resolution is passed or to Directors voting in favour of a resolution
shall be construed accordingly.
60.4 A resolution in writing made in accordance with this Article shall
constitute minutes for the purposes of the Law.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 29
60.5 For the purposes of this Article, the date of the resolution is the
date when the resolution is signed by, or in the case of a Director
that is a corporation whether or not a company within the meaning of
the Law, on behalf of, the last Director to sign (or Alternate
Director to sign if so authorised under Article 40.6), and any
reference in any Article to the date of passing of a resolution is, in
relation to a resolution made in accordance with this Article, a
reference to such date.
61. Validity of Prior Acts of the Board
No regulation or alteration to these Articles made by the Company in
general meeting shall invalidate any prior act of the Board which would
have been valid if that regulation or alteration had not been made.
CORPORATE RECORDS
62. Minutes
The Board shall cause minutes to be duly entered in books provided for the
purpose:
(a) of all elections and appointments of Officers;
(b) of the names of the Directors present at each meeting of the
Board and of any committee appointed by the Board; and
(c) of all resolutions and proceedings of general meetings of the
Members, meetings of the Board, meetings of managers and meetings
of committees appointed by the Board.
63. Register of Mortgages and Charges
63.1 The Directors shall cause to be kept the Register of Mortgages and
Charges required by the Law.
63.2 The Register of Mortgages and Charges shall be open to inspection in
accordance with the Law, at the office of the Company on every
business day in the Cayman Islands, subject to such reasonable
restrictions as the Board may impose, so that not less than two hours
in each such business day be allowed for inspection.
64. Form and Use of Seal
64.1 The Seal shall only be used by the authority of the Directors or of a
committee of the Directors authorised by the Directors in that behalf;
and, until otherwise determined by the Directors, the Seal shall be
affixed in the presence of a Director or the Secretary or an assistant
secretary or some other person authorised for this purpose by the
Directors or the committee of Directors.
64.2 Notwithstanding the foregoing, the Seal may without further authority
be affixed by way of authentication to any document required to be
filed with the Registrar of Companies in the Cayman Islands, and may
be so affixed by any Director, Secretary or assistant secretary of the
Company or any other person or institution having authority to file
the document as aforesaid.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 30
64.3 The Company may have one or more duplicate Seals, as permitted by the
Law; and, if the Directors think fit, a duplicate Seal may bear on its
face of the name of the country, territory, district or place where it
is to be issued.
ACCOUNTS
65. Books of Account
65.1 The Board shall cause to be kept proper records of account with
respect to all transactions of the Company and in particular with
respect to:-
(a) all sums of money received and expended by the Company and the
matters in respect of which the receipt and expenditure relates;
(b) all sales and purchases of goods by the Company; and
(c) all assets and liabilities of the Company.
65.2 Such records of account shall be kept and proper books of account
shall not be deemed to be kept with respect to the matters aforesaid
if there are not kept, at such place as the Board thinks fit, such
books as are necessary to give a true and fair view of the state of
the Company's affairs and to explain its transactions.
65.3 No Member (not being a Director) shall have any right of inspecting
any account or book or document of the Company.
66. Financial Year End
The financial year end of the Company shall be 31st December in each year
but, subject to any direction of the Company in general meeting, the Board
may from time to time prescribe some other period to be the financial year,
provided that the Board may not without the sanction of an ordinary
resolution prescribe or allow any financial year longer than eighteen
months.
AUDITS
67. Audit
Nothing in these Articles shall be construed as making it obligatory to
appoint Auditors.
68. Appointment of Auditors
68.1 The Company may in general meeting appoint Auditors to hold office for
such period as the Members may determine.
68.2 Whenever there are no Auditors appointed as aforesaid the Directors
may appoint Auditors to hold office for such period as the Directors
may determine or earlier removal from office by the Company in general
meeting.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 31
68.3 The Auditor may be a Member but no Director, Officer or employee of
the Company shall, during his continuance in office, be eligible to
act as an Auditor of the Company.
69. Remuneration of Auditors
Unless fixed by the Company in general meeting the remuneration of the
Auditor shall be as determined by the Directors.
70. Duties of Auditor
The Auditor shall make a report to the Members on the accounts examined by
him and on every set of financial statements laid before the Company in
general meeting, or circulated to Members, pursuant to this Article during
the Auditor's tenure of office.
71. Access to Records
71.1 The Auditor shall at all reasonable times have access to the Company's
books, accounts and vouchers and shall be entitled to require from the
Company's Directors and Officers such information and explanations as
the Auditor thinks necessary for the performance of the Auditor's
duties and, if the Auditor fails to obtain all the information and
explanations which, to the best of his knowledge and belief, are
necessary for the purposes of their audit, he shall state that fact in
his report to the Members.
71.2 The Auditor shall be entitled to attend any general meeting at which
any financial statements which have been examined or reported on by
him are to be laid before the Company and to make any statement or
explanation he may desire with respect to the financial statements.
VOLUNTARY WINDING-UP AND DISSOLUTION
72. Winding-Up
72.1 The Company may be voluntarily wound-up by a Special Resolution.
72.2 The assets available for distribution among the Members shall then be
applied in the following priority:
72.2.1 firstly, to each holder of Convertible Preferred Shares, either
(i) an amount equal to the Preference Amount, or (ii) a ratable
distribution in lieu thereof in accordance with Schedule 2;
72.2.2 secondly, to the holders of Common Shares.
72.3 If the Company shall be wound up the liquidator may, with the sanction
of a Special Resolution, divide amongst the Members in specie or in
kind the whole or any part of the assets of the Company (whether they
shall consist of property of the same kind or not) and may, for such
purpose, set such value as he deems fair upon any property to be
divided as aforesaid and may
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 32
subject to the rights of the Convertible Preferred Shares determine
how such division shall be carried out as between the Members or
different classes of Members. The liquidator may, with the like
sanction, vest the whole or any part of such assets in the trustees
upon such trusts for the benefit of the Members as the liquidator
shall think fit, but so that no Member shall be compelled to accept
any shares or other securities or assets whereon there is any
liability.
CHANGES TO CONSTITUTION
73. Changes to Articles
Subject to the Law, to the conditions contained in the Memorandum, the
Company may, by Special Resolution, alter or add to these Articles.
74. Changes to the Memorandum of Association
Subject to the Law, the Company may from time to time by Special Resolution
alter the Memorandum with respect to any objects, powers or other matters
specified therein.
75. Discontinuance
The Board may exercise all the powers of the Company to transfer by way of
continuation the Company to a named country or jurisdiction outside the
Cayman Islands pursuant to the Law.
76. Conflicts with Schedule
For the avoidance of doubt, in the event of any inconsistency between the
terms of Schedule 2 hereto or the remainder of these Articles in connection
with the rights attaching to the Convertible Preferred Shares, the terms of
Schedule 2 hereto shall, the necessary changes being made therein and
hereto, prevail.
Exhibit
<PAGE>
XINHUA FINANCE MEDIA LIMITED Page 33
Schedule 1
Terms of Common Shares
The holders of the Common Shares shall:
(a) be entitled to one vote per share;
(b) be entitled to such dividends as the Board may from time to time declare;
(c) in the event of a winding-up or dissolution of the Company, whether
voluntary or involuntary or for the purpose of a reorganization or
otherwise or for the purpose of a reorganization or otherwise or upon any
distribution of capital, be entitled to the surplus assets of the Company;
and
(d) generally be entitled to enjoy all of the rights attaching to Common
Shares.
Exhibit
<PAGE>
SCHEDULE 2
Terms of Convertible Preferred Shares
Convertible Preferred Shares. The board of directors (the "Board") of Xinhua
Finance Media Limited (the "Company") hereby establishes out of the authorized
and unissued Share Capital of the Company a series of Preferred Shares
designated as "Convertible Preferred Shares" (each such share, a "Convertible
Preferred Share"). The authorized number of Convertible Preferred Shares and the
preferences, limitations and relative rights and other matters pertaining to
Convertible Preferred Shares are described below. Capitalized terms used herein
but not otherwise defined in the individual sections have the meanings given to
them in Section 9 or in the body of the Articles.
SECTION 1. NUMBER OF SHARES. THE CONVERTIBLE PREFERRED SHARES SHALL CONSIST OF
TWENTY-TWO MILLION (22,000,000) PREFERRED SHARES.
SECTION 2. DIVIDENDS. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 2, THE
HOLDERS SHALL BE ENTITLED TO RECEIVE OUT OF ANY LEGALLY AVAILABLE FUNDS OF THE
COMPANY MANDATORY CUMULATIVE DIVIDENDS WHICH SHALL ACCRUE AND BE PAYABLE
QUARTERLY AT THE RATE PER ANNUM EQUAL TO THE DIVIDEND RATE COMMENCING WITH THE
DATE OF ORIGINAL ISSUANCE OF THE CONVERTIBLE PREFERRED SHARES (THE "ORIGINAL
ISSUANCE DATE") AND CONTINUING ON EACH CONVERTIBLE PREFERRED SHARE UNTIL IT
SHALL HAVE BEEN REDEEMED IN FULL AS PROVIDED IN THIS SCHEDULE 2. THE DIVIDENDS
PAYABLE AT THE DIVIDEND RATE ON EACH CONVERTIBLE PREFERRED SHARE SHALL BE
COMPUTED BASED ON THE PURCHASE PRICE OF $3.66 PER CONVERTIBLE PREFERRED SHARE
(THE "FACE AMOUNT"). ALL DIVIDENDS ON CONVERTIBLE PREFERRED SHARES SHALL BE PAID
PRO RATA PER SHARE. THE DIVIDEND SHALL CONTINUE TO ACCRUE AND BE PAYABLE WHETHER
OR NOT SUCH DIVIDENDS HAVE BEEN DECLARED. THE RIGHT OF PAYMENT OF DIVIDENDS
(WHETHER OR NOT DECLARED) ON THE CONVERTIBLE PREFERRED SHARES SHALL BE SENIOR IN
RIGHT OF PAYMENT TO DIVIDENDS, IF ANY, PAYABLE ON ANY OTHER SHARES, INCLUDING,
WITHOUT LIMITATION, COMMON SHARES AND ANY OTHER PREFERRED SHARES (ALL SUCH
CLASSES OF SHARES OTHER THAN THE CONVERTIBLE PREFERRED SHARES ARE REFERRED TO
HEREIN AS "COMPANY JUNIOR SHARES"). WITHOUT THE WRITTEN CONSENT OF THE MAJORITY
HOLDERS OF CONVERTIBLE PREFERRED SHARES THEN OUTSTANDING, NO DIVIDEND MAY BE
PAID ON ANY COMPANY JUNIOR SHARES AND NO COMPANY JUNIOR SHARES SHALL BE
REDEEMED, REPURCHASED OR OTHERWISE ACQUIRED BY THE COMPANY SO LONG AS ANY
CONVERTIBLE PREFERRED SHARES REMAIN OUTSTANDING.
Section 3. Liquidation Preference. In the event of any liquidation, dissolution,
or winding up of the Company, or any distribution of assets to its shareholders,
whether voluntary or involuntary, each Holder shall be entitled to receive for
each of its Convertible Preferred Shares, out of any lawfully available assets
of the Company, in preference to the holders of Company Junior Shares, an amount
equal to the Preference Amount, determined as of the date of payment of the
Preference Amount, before any distribution shall be made to the holders of
Company Junior Shares. After payment in full of the Preference Amount to the
Holders in respect of each Convertible Preferred Share, the Convertible
Preferred Shares shall have no further right to any remaining assets of the
Company. In the event that assets so distributable to Holders are insufficient
to permit payment of the full Preference Amount with respect to each Convertible
34
<PAGE>
Preferred Share, all assets of the Company legally available for distribution to
shareholders shall be distributed ratably among each Convertible Preferred
Share. In case the Company's Board shall desire to liquidate, dissolve, or wind
up the Company, it shall give notice of such intention to the Holders by first
class mail to the last address as may appear in the Company's records not less
than thirty (30) calendar days prior to the date of the general meeting at which
the resolution relating to such liquidation, dissolution, or winding up is to be
considered. Each Holder shall be provided with thirty (30) calendar days prior
notice of any intended merger, consolidation or other business combination
involving the Company, a sale of all or substantially all of the Company's
assets, a capital reorganization of the Company or a reclassification of the
Common Shares, and each Holder shall have the option by way of written notice
served upon the Company to require that the Company redeem, and the Company
shall redeem, each of that Holder's Convertible Preferred Shares as soon as
reasonably practicable following receipt of such written notice with the
redemption amount per Convertible Preferred Share being equal to the Preference
Amount.
Section 4. Redemption.
(a) Redemption Events. Except as provided in Sections 4(a)(i), 4(a)(ii),
4(a)(iii) and 4(a)(iv) below, the Convertible Preferred Shares may not
be redeemed without the consent of the Holder of such shares.
Redemption shall be effected upon the occurrence of one of the
following events:
(i) Redemption at the Redemption Date. At the Redemption Date,
the Company shall either (i) pay each Holder the Preference
Amount (determined as of the Redemption Date) for such Holder, or
(ii) deliver to each Holder the Parent Redemption Shares
(determined as of the Redemption Date) for such Holder; provided,
Company may not elect to deliver the Parent Redemption Shares
(and therefore must pay the Preference Amount) unless such Shares
are listed on a Qualified Exchange and are freely tradable
subject only to the rules and regulations of the Qualified
Exchange generally applicable to stock actively traded on the
Qualified Exchange; provided further, that such Holder may reject
any such payment of the Preference Amount or delivery of the
Parent Redemption Shares and instead elect to convert its
Convertible Preferred Shares into Common Shares pursuant to
Section 7 hereof. The Company shall provide five (5) Business
Days prior written notice to the Holders of its election pursuant
to this Section 4(a)(i) to either pay the Preference Amount or to
provide the Parent Redemption Shares, and the Holders shall have
three (3) Business Days from the date it receives such notice
from Company to elect to convert into Common Shares pursuant to
Section 7 hereof. For purposes of clarification, if any Holder
elects to convert to Common Shares pursuant to Section 7 hereof,
the Company shall not have the option of paying the Preference
Amount or delivering Parent Redemption Shares. If either: (x) the
Company fails to make the election to either pay the Preference
Amount or deliver the Parent Redemption Shares by the fifth
Business
35
<PAGE>
Day prior to the Redemption Date, or (y) the Company elects to
deliver Parent Redemption Shares and fails to deliver Parent
Redemption Shares within two (2) Business Days after the
Redemption Date, then the Company shall be deemed to have elected
to pay the Preference Amount and such payment obligation of the
Company shall be a senior obligation of the Company immediately
due and payable in full. If the Preference Amount is payable and
has not been paid in full, in addition to all other remedies,
interest shall accrue thereon from the Redemption Date until paid
in full at the rate of 15% per annum, payable immediately and
compounded monthly from the Redemption Date until paid in full.
If the Parent Redemption Shares or the Common Shares, as the case
may be, are deliverable and the Company fails to deliver the
Parent Redemption Shares or the Common Shares, as the case may
be, to each Holder on the Redemption Date, then (in addition to
all other remedies) dividends payable on the Convertible
Preferred Shares shall continue to accrue and shall be payable at
the Dividend Default Rate until such Parent Redemption Shares or
Common Shares, as the case may be, are so delivered and the
number of Parent Redemption Shares or Common Shares, as the case
may be, shall increase accordingly.
(ii) Optional Redemption. If prior to the Redemption Date,
Company elects to optionally redeem the Convertible Preferred
Shares, then at the date of optional redemption (the "Optional
Redemption Date"), the Company shall either (i) pay each Holder
the Preference Amount (determined as of the Optional Redemption
Date) for such Holder, or (ii) deliver to each Holder the Parent
Redemption Shares (determined as of the Optional Redemption Date)
for such Holder; provided, Company may not elect to deliver the
Parent Redemption Shares (and therefore must pay the Preference
Amount) unless such Shares are listed on a Qualified Exchange and
are freely tradable subject only to the rules and regulations of
the Qualified Exchange generally applicable to stock actively
traded on the Qualified Exchange; provided further, that such
Holder may reject any such payment of the Preference Amount or
delivery of the Parent Redemption Shares and instead elect to
convert its Convertible Preferred Shares into Common Shares
pursuant to Section 7 hereof. The Company shall provide five (5)
Business Days prior written notice to the Holders of its election
pursuant to this Section 4(a)(ii) to either pay the Preference
Amount or to provide the Parent Redemption Shares, and the
Holders shall have three (3) Business Days from the date it
receives such notice from Company to elect to convert into Common
Shares pursuant to Section 7 hereof. For purposes of
clarification, if any Holder elects to convert to Common Shares
pursuant to Section 7 hereof, the Company shall not have the
option of paying the Preference Amount or delivering Parent
Redemption Shares. If either: (x) the Company fails to make the
election to either pay the Preference Amount or deliver the
Parent Redemption Shares by the fifth Business Day prior to the
Optional Redemption Date, or (y) the Company elects to deliver
Parent Redemption Shares and fails to deliver Parent Redemption
Shares within two (2) Business Days after the Optional Redemption
Date, then the Company
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shall be deemed to have elected to pay the Preference Amount and
such payment obligation of the Company shall be a senior
obligation of the Company immediately due and payable in full. If
the Preference Amount is payable and has not been paid in full,
in addition to all other remedies, interest shall accrue thereon
from the Optional Redemption Date until paid in full at the rate
of 15% per annum, payable immediately and compounded monthly from
the Optional Redemption Date until paid in full. If the Parent
Redemption Shares or the Common Shares, as the case may be, are
deliverable and the Company fails to deliver the Parent
Redemption Shares or the Common Shares, as the case may be, to
each Holder on the Optional Redemption Date, then (in addition to
all other remedies) dividends payable on the Convertible
Preferred Shares shall continue to accrue and shall be payable at
the Dividend Default Rate until such Parent Redemption Shares or
Common Shares, as the case may be, are so delivered and the
number of Parent Redemption Shares or Common Shares, as the case
may be, shall increase accordingly. Notwithstanding the
foregoing, the Company may not optionally redeem the Convertible
Preferred Shares unless either (i) the Loans and the other
amounts payable under the Credit Agreement have been repaid in
full or (ii) the Required Lenders (as defined in the Credit
Agreement) shall have consented thereto.
(iii) IPO Redemption. If prior to the Redemption Date, there is
an IPO that is not a QIPO, the Company shall either (i) pay each
Holder the Preference Amount (determined as of the IPO Date) for
such Holder, or (ii) deliver to each Holder the Parent Redemption
Shares (determined as of the IPO Date) for such Holder; provided,
Company may not elect to deliver the Parent Redemption Shares
(and therefore must pay the Preference Amount) unless such Shares
are listed on a Qualified Exchange and are freely tradable
subject only to the rules and regulations of the Qualified
Exchange generally applicable to stock actively traded on the
Qualified Exchange; provided further, that such Holder may reject
any such payment of the Preference Amount or delivery of the
Parent Redemption Shares and instead elect to convert its
Convertible Preferred Shares into Common Shares pursuant to
Section 7 hereof. The Company shall provide five (5) Business
Days prior written notice to the Holders of its election pursuant
to this Section 4(a)(iii) to either pay the Preference Amount or
to provide the Parent Redemption Shares, and the Holders shall
have three (3) Business Days from the date it receives such
notice from Company to elect to convert into Common Shares
pursuant to Section 7 hereof. For purposes of clarification, if
any Holder elects to convert to Common Shares pursuant to Section
7 hereof, the Company shall not have the option of paying the
Preference Amount or delivering Parent Redemption Shares. If
either: (x) the Company fails to make the election to either pay
the Preference Amount or deliver the Parent Redemption Shares by
the fifth Business Day prior to the IPO Date, or (y) the Company
elects to deliver Parent Redemption Shares and fails to deliver
Parent Redemption Shares within two (2) Business Days after the
IPO Date, then the Company shall be deemed to have elected to pay
the Preference Amount and such payment obligation of the Company
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shall be a senior obligation of the Company immediately due and
payable in full. If the Preference Amount is payable and has not
been paid in full, in addition to other remedies, interest shall
accrue thereon from the IPO Date until paid in full at the rate
of 15% per annum, payable immediately and compounded monthly from
the IPO Date until paid in full. If the Parent Redemption Shares
or the Common Shares, as the case may be, are deliverable and the
Company fails to deliver the Parent Redemption Shares or the
Common Shares, as the case may be, to each Holder on the IPO
Date, then (in addition to all other remedies) dividends payable
on the Convertible Preferred Shares shall continue to accrue and
shall be payable at the Dividend Default Rate until such Parent
Redemption Shares or Common Shares, as the case may be, are so
delivered and the number of Parent Redemption Shares or the
Common Shares, as the case may be, shall increase accordingly.
(iv) Accelerated Redemption Event. If prior to the Redemption
Date, there is an Accelerated Redemption Event, then at the date
of such Event (the "Accelerated Redemption Date"), the Company
shall immediately either (i) pay each Holder the Preference
Amount (determined as of the date of Accelerated Redemption
Event) for such Holder, or (ii) deliver to each Holder the Parent
Redemption Shares (determined as of the date of Accelerated
Redemption Event) for such Holder; provided, Company may not
elect to deliver the Parent Redemption Shares (and therefore must
pay the Preference Amount) unless such Shares are listed on a
Qualified Exchange and are freely tradable subject only to the
rules and regulations of the Qualified Exchange generally
applicable to stock actively traded on the Qualified Exchange;
provided further, that such Holder may reject any such payment of
the Preference Amount or delivery of the Parent Redemption Shares
and instead elect to convert its Convertible Preferred Shares
into Common Shares pursuant to Section 7 hereof. The Company
shall provide five (5) Business Days prior written notice (if
possible) to the Holders of its election pursuant to this Section
4(a)(iv) to either pay the Preference Amount or to provide the
Parent Redemption Shares, and the Holders shall have three (3)
Business Days from the date it receives such notice from Company
to elect to convert into Common Shares pursuant to Section 7
hereof. For purposes of clarification, if any Holder elects to
convert to Common Shares pursuant to Section 7 hereof, the
Company shall not have the option of paying the Preference Amount
or delivering Parent Redemption Shares. If either: (x) the
Company fails to make the election to either pay the Preference
Amount or deliver the Parent Redemption Shares by the fifth
Business Day prior to the Accelerated Redemption Date, or (y) the
Company elects to deliver Parent Redemption Shares and fails to
deliver Parent Redemption Shares within two (2) Business Days
after the Accelerated Redemption Date, then the Company shall be
deemed to have elected to pay the Preference Amount and such
payment obligation of the Company shall be a senior obligation of
the Company immediately due and payable in full. If the
Preference Amount is payable and has not been paid in full, in
addition to other remedies, interest shall accrue thereon from
the Accelerated Redemption Date until paid in full at the rate of
15% per annum, payable immediately and compounded monthly from
the Accelerated Redemption Date until paid in full. If the Parent
Redemption Shares or the Common Shares, as the case may
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<PAGE>
be, are deliverable and the Company fails to deliver the Parent
Redemption Shares or the Common Shares, as the case may be, to
each Holder on the Accelerated Redemption Date, then (in addition
to all other remedies) dividends payable on the Convertible
Preferred Shares shall continue to accrue and shall be payable at
the Dividend Default Rate until such Parent Redemption Shares or
the Common Shares, as the case may be, are so delivered and the
number of Parent Redemption Shares or Common Shares, as the case
may be, shall increase accordingly.
(b) Mechanics of Redemption. If the Company shall be required to (or in
the case of 4(a)(ii) shall elect to) exercise its right to redeem all
of the outstanding Convertible Preferred Shares, it shall give notice
of such redemption to the Holders by first class mail to the last
address as may appear in the Company's records not less than five (5)
Business Days prior to the Redemption Date, the Optional Redemption
Date, or the IPO Date, as the case may be. The Company shall give
notice of redemption five (5) Business Days prior to the Accelerated
Redemption Date if possible and in any event as soon as practicable.
Each notice shall specify the date of redemption and the Preference
Amount. The Holders shall have three (3) Business Days from the date
it receives such notice from Company to elect to convert into Common
Shares pursuant to Section 7 hereof. Notwithstanding the foregoing,
each Holder shall continue to have the conversion rights specified in
Section 7 until its Convertible Preferred Shares are in fact redeemed.
Until such time as the Convertible Preferred Shares held by such
Holder are in fact redeemed, such Holder may reject any payment of the
Preference Amount or delivery of the Parent Redemption Shares and
instead elect to convert its Convertible Preferred Shares into Common
Shares pursuant to Section 7 hereunder. For purposes of clarification,
if any Holder elects to convert to Common Shares pursuant to Section 7
hereunder, the Company shall not have the option of paying the
Preference Amount or delivering Parent Redemption Shares. Shares shall
not be considered redeemed until all amounts payable with respect
thereto have been paid in full. Any shares that are redeemed or
otherwise acquired by the Company shall be canceled and shall be
restored to the status of authorized but unissued shares in the
capital of the Company without designation as to series, and may
thereafter be issued, but not as Convertible Preferred Shares. The
Company may fund the redemption of the Convertible Preferred Shares in
any manner permitted by law and may, subject to the Law, make payments
out of capital in connection therewith.
Section 5. Voting Rights. Except as otherwise required by law and herein, each
Holder shall be entitled to vote at any general or other meeting of the Company
on an as converted basis with the Common Shares as a single group and have all
other voting rights granted by law and the Articles.
Section 6. Additional Class Votes by Convertible Preferred Shares. Except to the
extent otherwise required by law, the Company may not, without the prior written
consent of the Majority Holders take any of the actions listed below:
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(a) Indebtedness. Create, incur, permit to exist or assume, or cause or
permit any of its Covered Subsidiaries or Subsidiaries to create,
incur, permit to exist or assume, any Indebtedness other than the
Permitted Indebtedness;
(b) Liens. Create or incur, or cause or permit any of its Covered
Subsidiaries to create or incur, any Liens on any of its property or
assets other than the Permitted Liens;
(c) Sales and Lease-Backs. Become or remain liable, or cause or permit any
of its Covered Subsidiaries to become or remain liable, directly or
indirectly, as lessee or as a guarantor or other surety with respect
to any lease of any property where the market value of such property
or the aggregate obligations are in excess of $100,000 (whether real,
personal or mixed), whether now owned or hereafter acquired, which the
Company or any Covered Subsidiary (i) has sold or transferred or is to
sell or to transfer to any other Person (other than the Company or any
Covered Subsidiary), or (ii) intends to use for substantially the same
purpose as any other property which has been or is to be sold or
transferred by the Company or such Covered Subsidiary to any Person
(other than the Company or any other Covered Subsidiary) in connection
with such lease;
(d) Transactions with Shareholders and Affiliates. Enter into or permit to
exist, or cause or permit any of its Covered Subsidiary to enter into
or permit to exist, any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service, but
excluding the transactions contemplated by the Equity Documents in
connection therewith) that is a Transaction with Shareholders and
Affiliates;
(e) Mergers; Asset Sales. (i) Become, or cause or permit any of its
Covered Subsidiary to become, party to a merger or consolidation, (ii)
sell, lease or otherwise dispose of, or cause any of its Covered
Subsidiaries to sell, lease or otherwise dispose of, assets other than
(A) in the ordinary course and not to exceed in the aggregate $500,000
per Fiscal Year and (B) disposals of obsolete, worn out or surplus
property, (iii) make any changes in the corporate structure or
identity of the Company or any other Covered Subsidiary which has a
Material Adverse Effect on the Company and/or such Covered Subsidiary
or (iv) enter into any agreement to do any of the foregoing; provided,
that, any Covered Subsidiary (other than the Company) may merge with
and into the Company or any other Covered Subsidiary upon not less
than thirty (30) days' prior written notice to the Agent of such
merger;
(f) Restricted Payments. Order, pay, make or set apart any sum, or cause
or permit any of its Covered Subsidiaries to order, pay, make, or set
apart any sum, directly or indirectly, for (i) any Restricted Junior
Payment or (ii) Indebtedness owed to any Affiliate of a Covered
Subsidiary other than (A) payments in respect of Permitted
Indebtedness made to the Company or to a wholly-owned Subsidiary or
(B) Repayment of EconWorld Indebtedness;
(g) Limitations on Exchange and Issuance of Share Capital. Create, issue,
or sell (i) any class or series of Preferred Shares (other than the
Convertible Preferred Shares), (ii) any class, series or shares of
Share Capital that is senior in rights in any respect (including,
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<PAGE>
without limitation, right of payment, right of repayment, rights in
liquidation, right of redemption or right to dividends) to the Common
Shares or the common shares of the Covered Subsidiaries (other than
the Convertible Preferred Shares), (iii) any class or series of Share
Capital that is convertible or exchangeable into Indebtedness,
Preferred Shares, or Share Capital that is senior in rights in any
respect (including, without limitation, right of payment, right of
repayment, rights in liquidation, right of redemption or right to
dividends) to the Common Shares or the common shares of the Covered
Subsidiaries, or (iv) any Convertible Preferred Shares other than
those shares issued under the Share Purchase Agreement;
(h) Subsidiaries. Form or cause or permit to be formed or cause or permit
to exist, or cause or permit any of its Covered Subsidiaries to form
or cause or permit to be formed or cause or permit to exist, any other
Foreign Subsidiary, unless (i) such Foreign Subsidiary does not
(directly or indirectly) hold any Media Asset and does not (directly
or indirectly) hold any outstanding shares of Share Capital of a
Subsidiary which is party to an Internal Control Agreement with
respect to such Media Asset or (ii) if such Foreign Subsidiary
directly or indirectly holds any Media Assets or directly or
indirectly holds any outstanding shares of Share Capital of a
Subsidiary which is party to an Internal Control Agreement with
respect to such Media Asset, such Foreign Subsidiary is wholly-owned
by a Covered Subsidiary and (x) all property and assets of such newly
formed Foreign Subsidiary and (y) all stock of any class of such newly
formed Foreign Subsidiary, in each case, are pledged to the Holders in
accordance with the terms of the Equity Documents.
(i) Conduct of Business. From and after the Original Issuance Date, engage
in, or cause or permit any of its Covered Subsidiaries to engage in,
in any business other than (i) the Permitted Business, and (ii) such
other lines of business as may be consented to by the Holders;
(j) Organizational Documents. Agree to, or cause or permit any of its
Covered Subsidiary to agree to, any material amendment, restatement,
supplement or other modification to, or waiver of (x) any provision in
the Articles of Association relating to the rights of the Convertible
Preferred Shares, or (y) any of its organizational or constitutive
documents in a manner adverse to the rights of any Holder, after the
Original Issuance Date;
(k) Bankruptcy. Institute, or cause or permit any of its Covered
Subsidiaries to institute, any proceeding seeking to adjudicate it
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seek the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any of its assets,
or make a general assignment for the benefit of creditors; and
(l) Liquidation or Dissolution. Seek, or cause or permit, the liquidation,
dissolution or winding up of the Company.
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Section 7. Conversion. Each Convertible Preferred Share shall be convertible
into Common Shares as follows:
(a) Conversion Ratio. Each Convertible Preferred Share shall be
convertible into such number of fully paid and nonassessable Common
Shares as is determined by dividing (i) the Face Amount of the
Convertible Preferred Shares plus all accrued unpaid dividends
(whether or not declared) on the Convertible Preferred Shares (the
"Preferred Conversion Amount") by (ii) the applicable Conversion Price
in effect on the applicable conversion date.
(b) Optional Conversion. Each Convertible Preferred Share shall be
convertible into Common Shares at the option of the Holder at any time
after the Original Issuance Date, by written notice to the Company.
The Conversion Price shall be determined as of the date such
conversion is effected. The Company will promptly thereafter, issue
and deliver to such Holder or its designee a certificate for the
number of Common Shares to which such Holder shall be entitled after
the conversion. The conversion will be deemed to have been completed
immediately prior to the close of business on the date of such
Holder's notice to the Company and the Person entitled to receive the
Common Shares issuable upon such conversion shall be treated as the
record holder of such Common Shares as of such date.
(c) Mandatory Conversion. Each Convertible Preferred Share shall be
converted automatically into Common Shares immediately upon a QIPO of
the Company that occurs prior to the Redemption Date. The Conversion
Price will be determined as of the QIPO Date. Upon the occurrence of
such event, the Company shall promptly issue and deliver to each
Holder or its designee in such Holder's or its designee's name a
certificate or certificates for the number of Common Shares into which
the Convertible Preferred Shares were converted.
(d) Accrued Cumulative Dividends. Company shall have the option to pay all
accrued cumulative but unpaid dividends (whether or not declared)
prior to the date at which the Convertible Preferred Shares are
converted to Common Shares.
(e) Conversion Price Adjustments. The Conversion Price shall be subject to
adjustment from time to time as described below:
(i) Adjustments for Common Shares Issuances Below Conversion
Price. The Conversion Price will be subject to adjustment if and
whenever on or after the Original Issuance Date, the Company
issues or sells (or in accordance with Section 7(e)(i)(A) or
7(e)(i)(B) is deemed to have issued or sold), any Common Shares
for a consideration per share which is less than the Conversion
Price in effect immediately prior to such issuance or sale. Upon
such an event, the Conversion Price shall be automatically
adjusted and reduced to the consideration per share for which
such Common Shares were issued or sold; provided that no
adjustment in the Conversion Price will be made pursuant to this
Section 7 in connection with any Exempt Issuance. For the
avoidance of doubt, there shall be no increase to the Conversion
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Price as a result of any issuance of shares for a consideration
per share that is in excess of the Conversion Price in effect
immediately prior to such issuance. If any adjustment to the
Conversion Price is made upon the issuance of Options or
Convertible Securities and such Options or Convertible Securities
expire without being converted or exercised, then the Conversion
Price shall be readjusted to the amount that would have been in
effect had such Options or Convertible Securities never been
issued or sold; provided that no readjustment provided for in
this Section 7(e)(i) shall have the effect of increasing the
Conversion Price to an amount which exceeds the lowest of (x) the
Conversion Price that was in effect immediately prior to the
adjustment made in connection with the issuance of such Options
or Convertible Securities, or (y) the Conversion Price that
results from any actual issuance of additional Common Shares
between the original adjustment date and such readjustment date.
For avoidance of doubt, any adjustment under this Section 7(e)(i)
shall be calculated independently of, and in addition to, any
adjustment under Section 7(e)(vi), and the lower of the two
Conversion Prices yielded by such independent calculations shall
be the new Conversion Price resulting from any Pre-IPO Issuance
(as defined in Section 7(e)(vi)). Conversion Price adjustments
under this Section 7(e) shall be calculated based on the
following provisions in the event Options or Convertible
Securities are issued.
(A) Issuance of Options. If the Company in any manner grants or
sells any Options and the price per share for which Common
Shares are issuable upon the exercise of such Options, or
upon the conversion or exchange of any Convertible
Securities issuable upon the exercise of such Options, is
less than the Conversion Price in effect immediately prior
to the time of the granting or sale of such Options, then
the maximum number of Common Shares issuable upon the
exercise of such Options, or upon conversion or exchange of
the maximum amount of such Convertible Securities issuable
upon the exercise of such Options, will be deemed to be
outstanding and to have been issued and sold by the Company
at the time of the granting or sale of such Options for such
price per share. For purposes of this Section 7(e)(i)(A),
the "price per share for which Common Shares are issuable
upon the exercise of such Options, or upon conversion or
exchange of any Convertible Securities issuable upon
exercise of such Options" will be determined by dividing (1)
the total amount, if any, received or receivable by the
Company as consideration for the granting or sale of such
Options, plus the minimum aggregate amount of additional
consideration payable to the Company upon the exercise of
all such Options, plus in the case of such Options which
relate to Convertible Securities, the minimum aggregate
amount of additional consideration, if any, payable to the
Company upon the issuance or sale of such Convertible
Securities and the conversion or exchange thereof, by (2)
the maximum number of Common Shares issuable upon the
exercise of such Options or upon the conversion or exchange
of all such Convertible Securities issuable upon the
exercise of such Options. No further adjustment of the
Conversion Price will be made upon the actual issuance of
Common Shares or of such Convertible Securities upon the
exercise of such
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Options or upon the issuance of Common Shares upon
conversion or exchange of such Convertible Securities.
(B) Effect of Issuance of Convertible Securities. If the Company
in any manner issues or sells any Convertible Securities and
the price per share for which Common Shares are issuable
upon the conversion or exchange thereof is less than the
Conversion Price in effect immediately prior to the time of
such issue or sale, then the maximum number of Common Shares
issuable upon conversion or exchange of all such Convertible
Securities will be deemed to be outstanding and to have been
issued and sold by the Company at the time of the issuance
or sale of such Convertible Securities for such price per
share. For the purposes of this Section 7(e)(i)(B), the
"price per share for which Common Shares are issuable upon
conversion or exchange thereof" will be determined by
dividing (1) the total amount received or receivable by the
Company as consideration for the issue or sale of such
Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company
upon the conversion or exchange thereof, by (2) the maximum
number of Common Shares issuable upon the exchange of all
such Convertible Securities. No further adjustment of the
Conversion Price will be made upon the actual issuance of
such Common Shares upon conversion or exchange of such
Convertible Securities, and if any such issue or sale of
such Convertible Securities is made upon exercise of any
Options for which adjustments of the Conversion Price had
been or are to be made pursuant to other provisions of this
Section 7(e), no further adjustment of the Conversion Price
will be made by reason of such issue or sale.
(C) Integrated Transaction. If Options or Convertible Securities
are issued in connection with the issue or sale of other
Securities of the Company, together comprising one
integrated transaction in which no specific consideration is
allocated to such Options or Convertible Securities by the
parties thereto, the Options or Convertible Securities will
be deemed to have been issued without consideration.
(D) Calculation of Consideration Received. If any Common Shares,
Options, or Convertible Securities are issued or sold or
deemed to have been issued or sold for cash, then the
consideration received therefor will be deemed to be the net
amount received by the Company. If any Common Shares,
Options, or Convertible Securities are issued or sold for a
consideration other than cash, then the amount of the
consideration other than cash received by the Company will
be the fair value of such consideration as determined in
good faith by mutual agreement between the Company and the
Majority Holders, except where such consideration consists
of Securities traded on a Qualified Exchange, in which case
the amount of consideration received by the Company will be
the Market Price thereof as of the date of receipt. If any
Common Shares, Options, or Convertible Securities are issued
to the owners of the non-surviving entity in connection with
any merger in which the Company is the surviving entity,
then the amount of consideration therefor will be deemed to
be the fair value of such portion of the
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net assets of the non-surviving entity as is attributable to
such Common Shares, Options or Convertible Securities, as
the case may be.
(ii)Dividend or Split. If there is (1) a split or subdivision of
the outstanding Common Shares or (2) a dividend or other
distribution payable in Common Shares or Options or Convertible
Securities without payment of any consideration, then, as of such
record date for such event, the Conversion Price shall be
appropriately decreased so the number of Common Shares issuable
on conversion of the Convertible Preferred Shares shall be
increased in proportion to such increase in the aggregate number
of Common Shares outstanding or issuable with respect to such
Options or Convertible Securities.
(iii) Combinations. If the number of Common Shares outstanding is
decreased by a combination of the outstanding Common Shares,
then, as of the record date of such combination, the Conversion
Price shall be appropriately increased so the number of Common
Shares issuable on conversion of each share of such series shall
be decreased in proportion to such decrease in outstanding Common
Shares.
(iv)Recapitalization, Consolidation, Merger, Etc. In case of any
change in the Common Shares through recapitalization,
reclassification, or other change in the Share Capital of the
Company (other than a combination of shares or the issuance of
additional Common Shares by stock split or stock dividend) or
through any merger or consolidation which is effected such that
holders of Common Shares are entitled to receive shares,
Securities, cash, or other assets in exchange for Common Shares,
then, as a condition of the change in capital structure or
merger, provision shall be made so that the Holders of
Convertible Preferred Shares will have the right thereafter to
receive upon conversion the kind and amount of shares of stock or
other Securities or property to which such Holders would have
been entitled if, immediately prior to such change in capital
structure, such Holders had held the number of Common
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Shares issuable upon conversion of the Convertible Preferred
Shares. In addition, appropriate provision will be made with
respect to the Holder's rights and interests to ensure that the
provisions in this Section 7 will thereafter be applicable in
relation to any shares, Securities, cash, or other assets
thereafter deliverable upon the conversion of Convertible
Preferred Shares.
(v)Protection Against Dilution. If any event occurs as to which,
in the mutual opinion of the Company's Board and the Majority
Holders, the other provisions of this Section 7(e) are not
strictly applicable or would not fairly protect the rights of the
Holders in accordance with the intent of these anti-dilution
provisions, then the Company's Board and the Majority Holders
shall agree to an adjustment in accordance with the intent of
these provisions to protect the Holders' rights under this
Section 7, but in no event shall any adjustment have the effect
of increasing the Conversion Price (except in the case of a
combination of Common Shares as described in Section 7(e)(iii)).
(vi)Adjustments for Common Shares Issuances Prior to IPO. The
Conversion Price will be subject to adjustment if and whenever on
or after the Original Issuance Date and prior to an IPO, the
Company issues or sells (or in accordance with Section
7(e)(vi)(A) or 7(e)(vi)(B) is deemed to have issued or
sold)(each, a "Pre-IPO Issuance"), any Common Shares. Upon such
an event, the Conversion Price shall be automatically adjusted
and reduced such that the number of Common Shares into which the
Preferred Conversion Amount converts after taking into account
such adjustment to the Conversion Price for the Pre-IPO Issuance
shall constitute the same percentage of the Fully-Diluted Common
Shares as they would have constituted had the Preferred
Conversion Amount been converted to Common Shares prior to such
Pre-IPO Issuance and such adjustment; provided that no adjustment
in the Conversion Price will be made pursuant to this Section
7(e)(vi) in connection with any applicable Exempt Issuance. If
any adjustment to the Conversion Price is made upon the issuance
of Options or Convertible Securities and such Options or
Convertible Securities expire without being converted or
exercised, then the Conversion Price shall be readjusted to the
amount that would have been in effect had such Options or
Convertible Securities never been issued or sold; provided that
no readjustment provided for in this Section 7(e)(vi) shall have
the effect of increasing the Conversion Price to an amount which
exceeds the lowest of (x) the Conversion Price that was in effect
immediately prior to the adjustment made in connection with the
issuance of such Options or Convertible Securities or (y) the
Conversion Price that results from any actual issuance of
additional Common Shares between the original adjustment date and
such readjustment date. For avoidance of doubt, any adjustment
under this Section 7(e)(vi) shall be calculated independently of,
and in addition to, any adjustment under Section 7(e)(i), and the
lower of the two Conversion Prices yielded by such independent
calculations shall be the new Conversion Price resulting from
such Pre-IPO Issuance. Conversion Price adjustments under this
Section 7(e)(vi) shall be calculated based on the following
provisions in the event Options or Convertible Securities are
issued.
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(A) Issuance of Options. If the Company in any manner grants or
sells any Options, then the maximum number of Common Shares
issuable upon the exercise of such Options, or upon
conversion or exchange of the maximum amount of such
Convertible Securities issuable upon the exercise of such
Options, will be deemed to be outstanding and to have been
issued and sold by the Company at the time of the granting
or sale of such Options. No further adjustment of the
Conversion Price will be made upon the actual issuance of
Common Shares or of such Convertible Securities upon the
exercise of such Options or upon the issuance of Common
Shares upon conversion or exchange of such Convertible
Securities.
(B) Effect of Issuance of Convertible Securities. If the Company
in any manner issues or sells any Convertible Securities,
then the maximum number of Common Shares issuable upon
conversion or exchange of all such Convertible Securities
will be deemed to be outstanding and to have been issued and
sold by the Company at the time of the issuance or sale of
such Convertible Securities. No further adjustment of the
Conversion Price will be made upon the actual issuance of
such Common Shares upon conversion or exchange of such
Convertible Securities, and if any such issue or sale of
such Convertible Securities is made upon exercise of any
Options for which adjustments of the Conversion Price had
been or are to be made pursuant to other provisions of this
Section 7(e), no further adjustment of the Conversion Price
will be made by reason of such issue or sale.
(C) Integrated Transaction. If Options or Convertible Securities
are issued in connection with the issue or sale of other
securities of the Company, together comprising one
integrated transaction in which no specific consideration is
allocated to such Options or Convertible Securities by the
parties thereto, the Options or Convertible Securities will
be deemed to have been issued without consideration.
(vii) Notice of Conversion Price Adjustments. When an adjustment
or readjustment of the Conversion Price is required pursuant to
this Section 7(e), the Company, at its expense, shall promptly
compute such adjustment or readjustment in accordance with the
terms of this Section 7 and prepare and furnish to each Holder a
notice setting forth such adjustment or readjustment and showing
in reasonable detail the facts upon which such adjustment or
readjustment is based.
(viii) Reservation of Shares. The Company shall at all times
reserve and keep available from its authorized but unissued
Common Shares such number of Common Shares as shall be sufficient
to effect the conversion of all outstanding Convertible Preferred
Shares; and if at any time the number of authorized but unissued
Common Shares shall not be sufficient to effect the conversion of
all then outstanding Convertible Preferred Shares, the Company
and Members will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized
but unissued Common Shares to such number of Common Shares as
shall be sufficient for such purposes, including, without
limitation, engaging in reasonable efforts to
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obtain and provide the requisite shareholder approval of any
necessary amendment to the Company's Memorandum and the Articles
of Association.
(ix) No Fractional Shares. No fractional shares shall be issued
upon the conversion of Convertible Preferred Shares, and the
number of Common Shares to be issued shall be rounded to the
nearest whole share. The Company shall, in lieu of issuance of
such fractional share, pay the Holder otherwise entitled to such
fractional share cash for the outstanding Convertible Preferred
Shares not converted.
(x) Mechanics of Conversion. The Company may adopt any manner of
conversion permitted by law to effect conversion including by way
of redemption or purchase of the Convertible Preferred Shares and
the issue of new Common Shares and the Company may, subject to
the Law, make payments out of capital in connection therewith.
Section 8. Accelerated Redemption Event. Any one or more of the following events
which shall occur and be continuing shall constitute an "Accelerated Redemption
Event" if so declared by a Holder upon written notice to the Company, and shall
trigger redemption (in addition to all other remedies) of the Convertible
Preferred Shares pursuant to Section 4(a)(iv):
(a) Failure to Make Payments on Dividends When Due. Failure by the Company
to pay when due any accrued dividends (whether or not declared) on the
Convertible Preferred Shares (i) unless such failure is caused by
administrative or technical error and (ii) payment is made within
thirty (30) days of its due date;
(b) Failure to Make Other Payments When Due. Failure by the Company to
make any other payment to the Holders when due, including any
Obligation pursuant to any Equity Document (i) unless such failure is
caused by administrative or technical error and (ii) payment is made
within thirty (30) days of its due date;
(c) Breach of Terms of Equity Documents. Failure by the Company to
materially perform or comply with any other terms of this Schedule 2
(including, without limitation, Section 2, Section 4 and Section 6) or
any terms of any Equity Document, other than any failure to make
payments when due, and such failure is continuing and not waived by
the Majority Holders within sixty (60) days of its occurrence;
(d) Default under Credit Agreement. An Event of Default under the Credit
Agreement shall occur and be continuing, and such Event of Default
shall not have been remedied by the Company or its Covered Subsidiary
within the grace period provided therefor;
(e) Default under Other Agreements. (i) Failure by the Company or any of
its Covered Subsidiaries to pay when due any principal of or interest
on or any other amount payable in respect of one or more items of
Indebtedness beyond the grace period, if any, provided therefor, (ii)
any Indebtedness of the Company or any Covered Subsidiary is declared
to be or otherwise becomes due and payable prior to its scheduled
maturity as a result of an event of default (however described), or
(iii) any creditor of the Company or any Covered
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Subsidiary declares any Indebtedness of the Company and such Covered
Subsidiary due and payable prior to its scheduled maturity as a result
of an event of default (however described); provided, however, that no
default shall occur under this Section 8(e) if the aggregate amounts
payable under subsections (i) to (iii) herein is less than $500,000
(or its equivalent in any other currency or currencies);
(f) Involuntary Bankruptcy, Appointment of Receiver, etc. (i) A court of
competent jurisdiction shall enter a decree or order for relief in
respect of the Parent, the Company or any of Company's Subsidiaries in
an involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in
effect, which decree or order is not stayed, or any other similar
relief shall be granted under any applicable federal or state law, or
(ii) an involuntary case shall be commenced against the Parent, the
Company or any of Company's Subsidiaries under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now
or hereafter in effect, or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having
similar powers over the Parent, the Company or any of Company's
Subsidiaries, or over all or a substantial part of its property, shall
have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of the
Parent, the Company or any of the Company's Subsidiaries for all or a
substantial part of its property or a warrant of attachment, execution
or similar process shall have been issued against any substantial part
of the property of the Parent, the Company or any of Company's
Subsidiaries, and any such event described in this clause (ii) shall
continue for sixty (60) days without having been dismissed, bonded or
discharged;
(g) Voluntary Bankruptcy, Appointment of Receiver, etc. (i) The Parent,
the Company or any of Company's Subsidiaries shall have an order for
relief entered with respect to it or shall commence a voluntary case
under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, or shall consent
to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of
its property; or the Parent, the Company or any of Company's
Subsidiaries shall make any assignment for the benefit of creditors,
or (ii) the Parent, the Company or any of Company's Subsidiaries shall
be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the board of
directors (or similar governing body) of the Parent, the Company or
any of Company's Subsidiaries (or any committee thereof) shall adopt
any resolution or otherwise authorize any action to approve any of the
actions referred to herein or in Section 8(f);
(h) Judgments and Attachments. Any money judgment, writ or warrant of
attachment or similar process involving (i) in any individual case an
amount in excess of $500,000 or (ii) in the aggregate at any time an
amount in excess of $1,000,000 (in either case to the extent not
adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed
against the
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Company or any of its Subsidiaries or any of their respective assets
and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty (60) days (or in any event later than five (5) days
prior to the date of any proposed sale thereunder);
(i) Dissolution. Any order, judgment or decree shall be entered against
the Company or any Covered Subsidiary decreeing the dissolution or
split up of the Parent, the Company or any of Company's Subsidiaries
and such order shall remain undischarged or unstayed for a period in
excess of sixty (60) days;
(j) Change of Control. A Change of Control shall occur;
(k) Equity Documents. At any time after the execution and delivery
thereof, (i) any Equity Document ceases to be in full force and effect
(other than by reason of a release of Collateral in accordance with
the terms thereof or the satisfaction in full of the Obligations in
accordance with the terms thereof) or shall be declared null and void,
or Holders shall not have or shall cease to have a valid and perfected
first priority Lien, subject only to Permitted Liens, in any material
portion of Collateral purported to be covered by the Collateral
Documents or (ii) the Company or any Covered Subsidiary shall contest
the validity or enforceability of any Equity Document in writing or
deny in writing that it has any further liability under any Equity
Document to which it is a party; or
(l) Internal Control Agreements. At any time after the execution and
delivery thereof, any Internal Control Agreement ceases to be in full
force and effect (other than by its terms) or shall be declared null
and void, except where such cessation or declaration would not result
in a Material Adverse Effect.
Section 9. Definitions
"Accelerated Redemption Event" shall have the meaning set forth in Section 8
hereof.
"Affiliate" of a Person means any other Person (a) that directly or indirectly
controls, is controlled by or is under common control with, the Person or any of
its Subsidiaries, (b) that directly or indirectly beneficially owns or holds 5%
or more of any class of equity Security or other similar interests of the Person
or any of its Subsidiaries or (c) 5% or more of the equity Securities of which
is directly or indirectly beneficially owned or held by the Person or any of its
Subsidiaries. For purposes of this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting Securities, by contract, agreement or otherwise.
Notwithstanding the foregoing, no Holder or any Affiliate of any Holder shall be
an Affiliate of the Parent, the Company or any of its Subsidiaries.
"Agent" means Patriarch Partners Agency Services, LLC.
"Asset Sale" means a sale, lease or sublease (as lessor or sublessor), sale and
leaseback, assignment, conveyance, transfer or other disposition to, or any
exchange of property with, any
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Person, in one transaction or a series of transactions, of all or any part of
the businesses of the Company or any of its Subsidiaries, assets or properties
of any kind, whether real, personal, or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, including, without
limitation, the Share Capital of any Subsidiary of the Company, but excluding
(i) inventory (or other assets) sold or leased in the ordinary course of
business and (ii) disposals of obsolete, worn out or surplus property.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Business Day" means a day other than Saturday or Sunday or other day on which
commercial banks in New York City, New York, Charlotte, North Carolina, Hong
Kong or Tokyo, Japan, are authorized or required by law or other governmental
action to close and a day on which dealings are carried on for deposits in
Dollars by and among banks in the London interbank market.
"Capital Lease" means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is or should be accounted for as a capital lease on the balance sheet
of that Person.
"Change of Control" means any one or more of the following events:
(i) Any individual, corporation, partnership, trust, association,
pool, syndicate, or any other entity or any group of persons acting in
concert (other than any Holder, any Affiliate of any Holder, the Parent or
any of its Subsidiaries) becomes the beneficial owner, as that concept is
defined in Rule 13d-3 promulgated by the Securities and Exchange Commission
under the Exchange Act of Securities of the Company possessing either (A)
fifty percent (50%) or more of the voting power for the election of
directors of the Company or (B) fifty percent (50%) or more in value of the
outstanding equity Securities (or the right to acquire fifty percent (50%)
or more) of the Company;
(ii) There shall be consummated any consolidation, merger, or other
business combination involving the Company or the Securities of the Company
in which (A) holders of voting Securities of the Company immediately prior
to such consummation own, as a group, immediately after such consummation,
voting Securities of the Company (or, if the Company does not survive such
transaction, voting Securities of the corporation surviving such
transaction) having less than fifty percent (50%) of the total voting power
in an election of directors of the Company (or such other surviving
corporation) or (B) holders of equity Securities of the Company immediately
prior to such consummation own, as a group, immediately after such
consummation, equity Securities of the Company (or, if the Company does not
survive such transaction, voting Securities of the corporation surviving
such transaction) having less than fifty percent (50%) of the equity
Securities of the Company (or such other surviving corporation);
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(iii) There shall be consummated any sale, lease, exchange, or other
transfer (in one transaction or a series of related transactions) of assets
representing all or substantially all of the assets of the Company (on a
consolidated basis) to a party which is not controlled by or under common
control with the Company either before or after such transaction or series
of related transactions; or
(iv) The Parent ceases to possess total voting power of the
outstanding equity Securities of the Company sufficient to elect a majority
of the members of the board of directors of the Company.
"Collateral Documents" means the Security Agreement, the Pledge Agreement, and
all other instruments, documents and agreements delivered by the Company or any
Covered Subsidiary pursuant to the Share Purchase Agreement or any of the other
Equity Documents (including, without limitation, all UCC financing statements)
in order to grant to the Holders a Lien on any property of the Company or any
Covered Subsidiary as security for the Obligations.
"Conversion Price" means the Initial Conversion Price, as may be adjusted in
accordance with Section 7 herein.
"Convertible Securities" means any Securities or other rights to acquire
Securities, other than the Convertible Preferred Shares, which are directly or
indirectly convertible into or exchangeable for Common Shares.
"Covered Subsidiary" means each of (i) Ming Shing International Limited, a
British Virgin Islands company, (ii) Upper Will Enterprises Limited, a British
Virgin Islands company and (iii) Active Advertising Agency Limited, a Hong Kong
company.
"Credit Agreement" means the Credit Agreement, dated as of March 16, 2006, among
the Company, the Holders, the Guarantors named therein and the Agent named
therein.
"Credit Document" means "Credit Document" as defined under the Credit Agreement.
"Dividend Rate" means a per annum rate of 11%; provided that such rate shall
increase to the Dividend Default Rate from and after the earliest of (i) the
Redemption Date, (ii) the Optional Redemption Date, (iii) the IPO Date, and (iv)
the Accelerated Redemption Date.
"Dividend Default Rate" means 15% per annum.
"Domestic Subsidiary" means any Subsidiary organized under the laws of the PRC.
"Equity Documents" means this Schedule 2, the Share Purchase Agreement, the
Collateral Documents, the Investor Rights Agreement and all other documents or
instruments or agreements executed or delivered by the Company or a Covered
Subsidiary for the benefit of any Holder.
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"Equity Payment Percentage" means (i) 42.86% or (ii) solely with respect to
calculating the Preference Amount payable upon an Accelerated Redemption Event
prior to December 31, 2008, the percentage equal to (x) 42.86% multiplied by (y)
the number of calendar days in the period from the Original Issuance Date until
the date of payment of the Preference Amount divided by (z) the number of
calendar days in the period from the Original Issuance Date until December 31,
2008. For the avoidance of doubt, the Equity Payment Percentage is determined by
(ii) above if and only if (i) there has been an Accelerated Redemption Event
prior to December 31, 2008, (ii) there has not been an IPO and (iii) the Company
has not elected to optionally redeem the Convertible Preferred Shares. In all
other cases, the Equity Payment Percentage shall be determined by (i) above.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended from time to time, and any successor statute
"Exempt Issuance" means the issuance of any Common Shares: (a) for purposes of
Section 7(e)(i) only (and not for purposes of Section 7(e)(vi)) to the extent
that any issuance to an Exempt Plan is in excess of the maximum numbers listed
on Annex A, under any employee benefit plan, employee share option plan, share
incentive plan or other similar plan adopted by the Company's Board (an "Exempt
Plan") only to the extent that the total number of Common Shares issued to such
Exempt Plan on a fully-diluted as converted basis does not exceed 20% of the
Fully-Diluted Common Shares determined as of the date immediately prior to such
issuance; (b) to any Person listed on Annex A (each, an "Exempt Issuee") in
consideration for the contribution of assets as indicated on Annex A (the
"Specified Contributed Assets"), (i) at an effective per share price equal to or
greater than $3.00 per Common Share and (ii) only to the extent that (A) the
total number of Common Shares issued to such Exempt Issuee on a fully-diluted as
converted basis does not exceed the maximum number of shares set forth next to
such Exempt Issuee's name on Annex A and (B) the Exempt Issuee contributes the
Specified Contributed Assets in consideration for the issuance of such Common
Shares; or (c) for purposes of Section 7(e)(i) only (and not for purposes of
Section 7(e)(vi)), not exceeding 0.5% of the lesser of (i) the Fully-Diluted
Common Shares determined as of the date immediately prior to such issuance and
(ii) the number equal to the sum of (A) the number of outstanding Fully-Diluted
Common Shares determined as of the Original Issuance Date plus (B) the number of
Fully-Diluted Common Shares issued pursuant to any Exempt Issuance under clauses
(a) and (b) of this definition, each of (A) and (B) as adjusted in accordance
with the provisions of Section 7(e)(ii)-(v). For the avoidance of doubt, any
issuance of Common Shares pursuant to clause (a) of this definition for numbers
of Common Shares in excess of the maximum numbers listed on Annex A shall be
subject to adjustments as set forth in Section 7(e)(vi) and any issuance of
Common Shares pursuant to clause (b) of this definition (w) for an effective per
share price less than $3.00, (x) in consideration for assets other than the
Specified Contributed Assets, (y) to any Person not listed on Annex A, or (z)
for numbers of Common Shares in excess of the maximum numbers listed on Annex A
shall be subject to adjustments as set forth in Section 7.
"Fiscal Year" means the fiscal year of the Company and its Subsidiaries ending
on December 31 of each calendar year.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic Subsidiary.
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"Fully-Diluted Common Shares" means, as of the time of determination, all issued
and outstanding common shares of the Company and all common shares of the
Company issuable upon conversion or exercise of any rights, options, warrants or
other Securities convertible into or exercisable for common shares, including,
without limitation, the Convertible Preferred Shares.
"GAAP" means International Financial Reporting Standards as in effect from time
to time, consistently applied throughout the periods to which reference is made.
"Holder" and "Holders" mean the Persons from time to time holding the
Convertible Preferred Shares.
"Hong Kong" means the Hong Kong Special Administrative Region of the People's
Republic of China.
"HK Dollars" and the sign "HK$" mean the lawful money of Hong Kong.
"Indebtedness" means, with respect to any Person, without duplication, the
following: (i) all indebtedness of such Person for borrowed money, (ii) all
obligations of such Person for the deferred purchase price of property or
services other than accounts payable and accrued liabilities that would be
classified as current liabilities under GAAP which payables and expenses are
incurred in respect of property or services purchased in the ordinary course of
business, (iii) all obligations of such Person evidenced by notes, bonds,
debentures or similar borrowing or Securities instruments, (iv) all obligations
of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person, (v) all
obligations of such Person as lessee under Capital Leases, (vi) all obligations
of such Person in respect of banker's acceptances and letters of credit, (vii)
all obligations of such Person secured by Liens on the assets and property of
such Person, (viii) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Share Capital or other
ownership or profit interest in such Person or any other Person or any warrants,
rights or options to acquire such Share Capital, (ix) all obligations of such
Person in respect of any guaranty by such Person of any obligation of another
Person of the type described in clauses (i) through (viii) of this definition
and (x) all obligations of another Person of the type described in clauses (i)
through (ix) secured by a Lien on the property or assets of such Person (whether
or not such Person is otherwise liable for such obligations of such other
Person).
"Initial Conversion Price" means
(i) $3.66 if neither of the Newspaper Assets is acquired directly or
indirectly by the Company; and
(ii) $5.17 if 100% of the ownership of both Newspaper Assets is
acquired directly or indirectly by the Company;
provided, for the avoidance of doubt, that any adjustment previously made
to the Initial Conversion Price shall be made again to any new substituted
Initial
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Conversion Price. The purpose of this proviso is to clarify that the
Holders shall receive the full benefit of any such adjustment and shall not
be deprived of such benefit due to the acquisition of the Newspaper Assets
by the Company.
"Internal Control Agreement" means (i) any appointment or indemnification
arrangement or agreement with a natural Person, who is a citizen of the PRC,
designated by Parent or Company or any Affiliate or Subsidiary of Parent or
Company to act as nominee shareholder and legal representative of any Domestic
Subsidiary, and any action, arrangement, declaration, or agreement undertaken by
such Person, or caused to be undertaken by such Person, in connection with the
fulfillment of such role, including, without limitation, the acquisition of any
beneficial interest or the holding of record in the Securities (including Share
Capital) of such Domestic Subsidiary and the execution, either with Parent,
Company, Affiliate or Subsidiary of Parent or Company or any other third party
whether or not affiliated with Parent or Company, of any secured promissory
note, equity pledge agreement, equity purchase option agreement, subrogation
agreement, declaration of waiver of pre-emption rights, and declaration of
waiver of spousal communal rights or (ii) any arrangement or agreement
(including, without limitation, any consulting or service arrangements or
agreements) pursuant to which Company or any Subsidiary of Company indirectly
receives the economic benefit of revenue generated by any Media Asset.
"IPO" means an initial public offering of common shares of the Company which has
been admitted for listing and trade on a Qualified Exchange.
"IPO Date" means the date of the initial IPO.
"Joint Venture" means a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided, in no event
shall any corporate Subsidiary of any Person be considered to be a Joint Venture
to which such Person is a party.
"Liens" means any encumbrance, mortgage, pledge, hypothecation, charge,
assignment, lien, restriction or other security interest of any kind securing
any obligation of any Person.
"Loans" means the Term Loan made by the Holders to the Company pursuant to the
Credit Agreement.
"Majority Holders" means the Holders holding a majority in number of the
outstanding Convertible Preferred Shares from time to time.
"Market Price" of any security means the average of the closing prices of such
security's sales on the Qualified Exchange, averaged over a period of five days
consisting of the day as of which "Market Price" is being determined and the
four consecutive business days prior to such day. If at any time such security
is not listed on a Qualified Exchange then the "Market Price" will be the fair
value thereof determined in good faith by mutual agreement between the Company's
Board and the Holders.
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"Material Adverse Effect" means any (i) material adverse effect on the business,
operations, properties, assets or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole that may affect the ability of the
Company or any Covered Subsidiary to perform its material obligations under any
of the Equity Documents, (ii) material impairment of the ability of the Company
or any of its Covered Subsidiary to perform its obligations under any of the
Equity Documents, (iii) material adverse effect on the legality, validity,
binding effect or enforceability of the Equity Documents against the Company or
any of its Covered Subsidiaries or (iv) material adverse effect on the rights or
remedies available to the Holders under any Equity Document, excluding any
written waivers or releases by the Holders.
"Media Assets" means the assets set forth in Annex B of this Schedule 2.
"Newspaper Assets" means the assets set forth in Annex C of this Schedule 2.
"Obligations" means all amounts owed, obligations and liabilities of the Company
or any of its Covered Subsidiaries from time to time owed to any Holder or its
Affiliates direct or indirect, joint or several, absolute or contingent, matured
or unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise, arising or incurred under the Equity
Documents.
"Options" means any Securities or other rights to subscribe for or purchase,
directly or indirectly, Common Shares or Convertible Securities.
"Original Issuance Date" is the date as defined in Section 2 herein.
"Parent" means Xinhua Finance Limited.
"Parent Redemption Shares" means, with respect to each Holder, as of any date of
determination, the aggregate number of shares of fully paid and non-assessable
common shares, par value HK$20, of the Parent (as such shares shall then be
constituted) equal in value to (i) all accrued and unpaid dividends (whether or
not declared) on all of the Convertible Preferred Shares held by such Holder on
such date of determination plus (ii) the outstanding Face Amount of Convertible
Preferred Shares held by such Holder on such date of determination, with the
price per share of such common shares of the Parent determined at a 10% discount
to the 30 Trading Day trailing average closing price of such common shares of
the Parent on the Relevant Exchange as of the date that is (w) for Parent
Redemption Shares delivered under Section 4(a)(i), three (3) days prior to the
Redemption Date, (x) for Parent Redemption Shares delivered under Section
4(a)(ii), three (3) days prior to the Optional Redemption Date, (y) for Parent
Redemption Shares delivered under Section 4(a)(iii), three (3) days prior to the
IPO Date, or (z) for Parent Redemption Shares delivered under Section 4(a)(iv),
three (3) days prior to the date of Accelerated Redemption Event.
"Permitted Business" means the business of investing in the Media Assets and
other related media businesses.
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"Permitted Indebtedness" means (i) Indebtedness arising under the Credit
Documents, (ii) Indebtedness of the Company or any Covered Subsidiary existing
as of the date of the Share Purchase Agreement set forth on the Schedule of
Exceptions of such Share Purchase Agreement, (iii) Indebtedness in respect of
taxes or other governmental charges contested in good faith by appropriate
proceedings and for which the Company or any Covered Subsidiary has made
appropriate reserves, (iv) Indebtedness of the Company or any Covered Subsidiary
incurred under Capital Leases entered into in the ordinary course of business in
an aggregate amount not to exceed $500,000 on any date of determination, (v)
Indebtedness in RMB which is entirely secured by a Dollar deposit and which is
incurred solely for the purpose of converting Dollars into RMB required for
working capital purposes in the PRC, or (vi) trade or other similar Indebtedness
on normal commercial terms incurred in the ordinary course of business in an
aggregate amount not to exceed $500,000 on any date of determination and payable
within ninety (90) days.
"Permitted Liens" means (i) Liens securing the Obligations, (ii) Liens securing
taxes or other governmental charges not yet due or due but contested in good
faith by appropriate proceedings and for which the Company or any of its Covered
Subsidiary has made appropriate reserves (so long as the holder of any such Lien
is not taking any active steps to enforce or foreclose on such Lien), (iii)
Liens of landlords, carriers, warehousemen, mechanics and materialmen and other
similar statutory Liens arising in the ordinary course of the Company and such
Covered Subsidiary's business, less than 120 days old as to obligations not yet
due or due but contested in good faith by appropriate proceedings and for which
the Company and such Covered Subsidiary has made appropriate reserves (so long
as the holder of any such Lien is not taking any active
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steps to enforce or foreclose on such Lien), (iv) easements, rights of way,
zoning restrictions and similar minor Liens which individually and in the
aggregate do not have a Material Adverse Effect on the Company and/or any
Covered Subsidiary, and (v) Liens securing obligations arising under the Credit
Documents.
"Person" means and includes natural persons, corporations, limited partnerships,
general partnerships, limited liability companies, limited liability
partnerships, joint stock companies, Joint Ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, other legal entities and
Governmental Bodies.
"Pledge Agreement" means the Pledge Agreement and Irrevocable Proxy, dated as of
March 16, 2006, among the Company, the Covered Subsidiaries and the Holders.
"Preference Amount" means, with respect to each Holder, as of any date of
determination, for each Convertible Preferred Share held by each Holder, the sum
of (i) the Face Amount plus (ii) any accrued and unpaid dividends due (whether
or not declared, and including, if applicable, dividends at the Dividend Default
Rate) on such Convertible Preferred Share on such date of determination plus
(iii) an amount equal to the Equity Payment Percentage multiplied by the Face
Amount.
"Preferred Shares" means all preferred shares of the Company.
"PRC" means the People's Republic of China excluding Hong Kong, Macau Special
Administrative Region and Taiwan.
"QIPO" means an IPO of the Company in which the QIPO Valuation is no less than
$400 million or, if 100% of the ownership of both Newspaper Assets has been
acquired directly or indirectly by the Company, an IPO of the Company in which
the QIPO Valuation is no less than $500 million.
"QIPO Date" means the date of the QIPO.
"QIPO Valuation" means an amount equal to (i) the initial price per share of
Common Shares issued in the IPO (and, if such price is not expressed in Dollars,
then its equivalent in Dollars) multiplied by (ii) the number of outstanding
Common Shares immediately following the closing of the IPO.
"Qualified Exchange" means any Designated Offshore Securities Market as defined
in Section 230.902(b) of Regulation S of the Securities Act or any securities
exchanges or inter-dealer quotation systems in the United States.
"Redemption Date" means December 31, 2008.
58
<PAGE>
"Relevant Exchange" means the Tokyo Stock Exchange.
"Repayment of EconWorld Indebtedness" means repayment of (i) the loan dated
February 14, 2006 in the principal amount of $1,330,000 by EconWorld Media
Limited as borrower to Xinhua Financial Network Limited as lender, (ii) the loan
dated October 18, 2005 in the principal amount of $300,000 by EconWorld Media
Limited as borrower to Xinhua Financial Network Limited as lender and (iii) the
loan dated October 18, 2005 in the principal amount of $200,000 by EconWorld
Media Limited as borrower to Xinhua Financial Network Limited as lender, in each
case solely by set off of such amounts against any amounts owed by Xinhua
Financial Network Limited or the Parent to EconWorld Media Limited.
"Restricted Junior Payment" means, for the Company and/or any of its
Subsidiaries, (a) any dividend or other distribution, direct or indirect, on
account of any class of Share Capital of the Company or such Subsidiary now or
hereafter outstanding, except a dividend payable solely in shares of that class
of Share Capital to the holders of that class; (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of the Company or such
Subsidiary now or hereafter outstanding, and (c) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire any class of Share Capital of the Company or such Subsidiary now or
hereafter outstanding; provided, however, Restricted Junior Payments shall not
include any amounts payable under the Convertible Preferred Shares (including,
without limitation, dividends or redemption payments); provided, further, with
respect to subclauses (a), (b) and (c) above, Restricted Junior Payments shall
not include any dividends or other distributions by a Subsidiary which are made
pro rata to all of its shareholders or members.
"RMB" means the lawful money of the PRC.
"Schedule of Exceptions" means the Schedule of Exceptions attached as Annex E to
this Schedule 2 and delivered to the Holders prior to the Original Issuance
Date.
"Security Agreement" means the Security Agreement, dated as of March 16, 2006,
among the Company, the Covered Subsidiaries and the Holders.
"Securities" means any stock, shares, limited liability company membership
interests, partnership interests, voting trust certificates, certificates of
interest or participation in any profit-sharing agreement or arrangement,
options, warrants, bonds, debentures, notes, or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"Share Capital" means any and all shares, interests, participations or other
equivalents (however designated) of share capital of a corporation, any and all
equivalent ownership or equity interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
59
<PAGE>
"Share Purchase Agreement" means the Share Purchase Agreement, dated as of March
16, 2006, between the Company and the Holders.
"Significant Person" means (i) any holder of 5% or more of any class of Share
Capital of the Parent, any Covered Subsidiary or any of their Subsidiaries, (ii)
any Person holding a senior management or executive position in the Parent, any
Covered Subsidiary or any of their Subsidiaries, or (iii) any Person who is a
member of the board of directors of the Parent, any Covered Subsidiary or any of
their Subsidiaries. For purposes of clarification, "Significant Person" does not
include the Parent.
"Subsidiary" means, (i) with respect to any Person, any corporation,
partnership, limited liability company, association, Joint Venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof and (ii) the entities listed on Annex D of this Schedule 2 and their
Subsidiaries as defined in clause (i) of this definition.
"Trading Day" means a day during which trading in Securities generally occurs on
the Relevant Exchange (provided that no day on which trading of the applicable
security is suspended on such exchange or other trading market will count as a
Trading Day).
"Transaction with Shareholders and Affiliates" means any transaction between a
Significant Person and the Company or any of its Subsidiaries, except (i)
transactions between the Company and any of its wholly-owned Subsidiaries, (ii)
transactions between any wholly-owned Subsidiaries of the Company and (iii)
those transactions that are (A) on terms no less favorable to the Company or its
Covered Subsidiaries than those that generally might be obtained at the time
from a Person who is not such a holder or an Affiliate and (B) approved by the
board of directors of the Company or its Covered Subsidiaries; provided, the
foregoing shall not apply to (x) any transaction between the Company and the
Parent and (y) compensation and expense reimbursement arrangements for
directors, officers and other employees of the Company or its Covered
Subsidiaries entered into in the ordinary course of business.
60
<PAGE>
ANNEX A
EXEMPT ISSUANCES
All defined terms used herein and not defined shall have the meanings set forth
in Annex A to the Credit Agreement.
MAXIMUM NUMBER OF
XFM SHARES TO BE
SHAREHOLDER SPECIFIED CONTRIBUTED ASSETS ISSUED
----------- ------------------------------------------------------- -----------------
1. Best Gain Group Ltd 40% of the fully-diluted equity of EconWorld Media 955,556
2. Cheers Perfect Ltd. Limited so long as EconWorld Media Limited holds the
3. Cheung Wah Keung Financial Magazine Assets.
4. EconWorld Holdings Ltd.
5. Gainful Concept Ltd.
6. Justly Investment International
Ltd.
7. Lo Li Chun
8. Lo Shui Ling Raymond
9. Quach Fung Vi
Sanlian Group and its Affiliates 42% of the fully-diluted equity of Beijing Jingguan 4,781,893
Xingcheng Advertising Co., Ltd. (Economic Observer) so
long as Beijing Jingguan Xingcheng Advertising Co.,
Ltd. (Economic Observer) holds the Financial Newspaper
Assets.
Economic Observer Shareholders 8% of the fully-diluted equity of Beijing Jingguan 979,424
Xingcheng Advertising Co., Ltd. (Economic Observer) so
long as Beijing Jingguan Xingcheng Advertising Co.,
Ltd. (Economic Observer) holds the Financial Newspaper
Assets.
Hyperlink Shareholder 49% of the fully-diluted equity of Shanghai Hyperlink 1,613,169
Market Research Co., Ltd. (Hyperlink) so long as
Shanghai Hyperlink Market Research Co., Ltd.
(Hyperlink) holds the Media Market Research Assets.
Yu Gang 16% of the fully-diluted equity of Accord Group 125,053
Investments Limited so long as Accord Group Investments
holds the Radio Assets.
Sino Investments Holdings Limited 37% of the fully-diluted equity of Upper Step Holdings 6,478,437
Limited so long as Upper Step Holdings Limited holds
the Television Assets.
Sino Investments Holdings Limited 49% of the fully-diluted equity of Accord Group 451,107
Investments Limited so long as Accord Group Investments
holds the Radio Assets.
Sungolden Limited 44% of the fully-diluted equity of Upper Step Holdings 6,407,018
Limited so long as Upper Step Holdings Limited holds
the Television Assets.
61
<PAGE>
Sungolden Limited 16% of the fully-diluted equity of Accord Group 125,053
Investments Limited so long as Accord Group Investments
holds the Radio Assets.
Xinhua Finance Limited 50% of the fully-diluted equity of Beijing Jingguan 5,761,317
Xingcheng Advertising Co., Ltd. (Economic Observer) so
long as Beijing Jingguan Xingcheng Advertising Co.,
Ltd. (Economic Observer) holds the Financial Newspaper
Assets.
Xinhua Finance Limited 51% of the fully-diluted equity of Shanghai Hyperlink 1,679,012
Market Research Co., Ltd. (Hyperlink) so long as
Shanghai Hyperlink Market Research Co., Ltd.
(Hyperlink) holds the Media Market Research Assets.
Exempt Plan if both Newspaper Assets N/A 22,777,602
are not acquired
Exempt Plan if both Newspaper Assets N/A 22,340,962
are acquired
Fully-diluted capitalization of Xinhua Finance Media Limited assuming completion
of all Exempt Issuances above if both Newspaper Assets are not acquired:
SHAREHOLDER OWNERSHIP PERCENTAGE XFM SHARES
----------- -------------------- -----------
Xinhua Finance Limited 44.0% 50,054,619
Patriarch Partners Media Holdings, LLC 16.8% 19,139,080
EconWorld Shareholders 0.8% 955,556
Sino Investments Holdings Limited 6.1% 6,929,544
Sungolden Limited 5.7% 6,532,070
Yu Gang 0.1% 125,053
Sanlian Group and its Affiliates 4.2% 4,781,893
Economic Observer Shareholders 0.9% 979,424
Hyperlink Shareholders 1.4% 1,613,169
Exempt Plan 20.0% 22,777,602
----- -----------
Total 100.0% 113,888,009
===== ===========
Fully-diluted capitalization of Xinhua Finance Media Limited assuming completion
of all Exempt Issuances above if both Newspaper Assets are acquired:
62
<PAGE>
SHAREHOLDER OWNERSHIP PERCENTAGE XFM SHARES
----------- -------------------- -----------
Xinhua Finance Limited 44.8% 50,054,619
Patriarch Partners Media Holdings, LLC 15.6% 17,392,522
EconWorld Shareholders 0.9% 955,556
Sino Investments Holdings Limited 6.2% 6,929,544
Sungolden Limited 5.8% 6,532,070
Yu Gang 0.1% 125,053
Sanlian Group and its Affiliates 4.3% 4,781,893
Economic Observer Shareholders 0.9% 979,424
Hyperlink Shareholders 1.4% 1,613,169
Exempt Plan 20.0% 22,340,962
----- -----------
Total 100.0% 111,704,811
===== ===========
63
<PAGE>
ANNEX B
MEDIA ASSETS
NUMBER OF SHARES/EQUITY PERCENTAGE
COMPANY NAME INTEREST OWNED OWNED BY XFM STATUS
------------ ----------------------- ------------ ---------------
Accord Group Holdings 19 19% Completed
Limited and all of the radio
assets held directly and
indirectly by Accord Group
Holdings Limited as of the
date hereof, as illustrated
on the attached structure
chart (the "RADIO ASSETS")
EconWorld Media Limited and 210,000 60% Completed
all of the magazine assets
held directly and indirectly
by EconWorld Media Limited
as of the date hereof, as
illustrated on the attached
structure chart (the
"FINANCIAL MAGAZINE ASSETS")
Ming Shing International 1,000 100% Completed
Limited and all of the
advertising assets held
directly and indirectly by
Ming Shing International
Limited as of the date
hereof, as illustrated on
the attached structure chart
(the "ADVERTISING ASSETS")
Upper Step Holdings Limited 95 19% Completed
and all of the
64
<PAGE>
television assets held
directly and indirectly by
Upper Step Holdings Limited
as of the date hereof, as
illustrated on the attached
structure chart (the
"TELEVISION Assets")
Beijing Jingguan Xincheng n/a 50% To be completed
Advertising Co., Ltd.
(Economic Observer) (held
through a nominee domestic
entity) and all of the
newspaper assets held
directly and indirectly by
Beijing Jingguan Xincheng
Advertising Co., Ltd.
(Economic Observer) as of
the date hereof (the
"FINANCIAL NEWSPAPER ASSETS")
Shanghai Hyperlink Market n/a 51% To be completed
Research Co., Ltd.
(Hyperlink) (held through a
nominee domestic entity and
after the restructuring of
its subsidiary in Guangzhou)
and all of the media market
research assets held
directly and indirectly by
Shanghai Hyperlink Market
Research Co., Ltd.
(Hyperlink) as of the date
hereof (the "MEDIA MARKET
RESEARCH ASSETS")
65
<PAGE>
ANNEX C
NEWSPAPER ASSETS
NUMBER OF SHARES/EQUITY SHAREHOLDING
COMPANY NAME INTEREST OWNED PERCENTAGE STATUS
------------ ----------------------- ------------ ---------------
Hong Kong Economic n/a 100% To be completed
Journal and all of the
newspaper assets held
directly and indirectly
by Hong Kong Economic
Journal as of the date
hereof (the "HK FINANCIAL
NEWSPAPER ASSETS")
Certain media assets held n/a 100% To be completed
by The Wealth Group
(Taiwan), including
"Wealth News" and all of
the newspaper assets held
directly and indirectly
by The Wealth Group
(Taiwan) as of the date
hereof (the "TAIWAN
FINANCIAL NEWSPAPER
ASSETS")
66
<PAGE>
ANNEX D
SUBSIDIARIES
Upper Step Holdings Limited
Accord Group Investments Limited
67
<PAGE>
ANNEX E
SCHEDULE OF EXCEPTIONS
Leased Property
(1) ACTIVE ADVERTISING AGENCY LIMITED
Tenancy agreement dated 26 July 2004 entered into among Active Advertising
Agency Limited and Trinity Advertising Agency Limited as tenants and Newbh
Limited as landlord for the lease of the property situated at 21/F, On Hong
Commercial Building, 145 Hennessy Road, Wanchai, Hong Kong for a term of 2 years
from 1 September 2004 and 31 August 2006 at a monthly rental of HK$27,000.00
(inclusive of management fees and Government rates).
(2) ECONWORLD MEDIA LIMITED
Memorandum of tenancy dated 16 July 2005 entered into between EconWorld Media
Limited as tenant and Hang Lung Real Estate Agency Limited as agent for the
registered owner Zarat Limited for the lease of the property situated at Room
No. 203A, 2nd Floor, Stanhope House, 734 King's Road, Quarry Bay, Hong Kong for
a term of 2 years from 15 July 2005 to 14 July 2007 at a monthly rental of
HK$10,798.50, exclusive of monthly management fees of HK$3,192.60,
air-conditioning charges and Government rates.
68
<PAGE>
SUBSIDIARIES AND CAPITALIZATION
(1) UPPER STEP HOLDINGS LIMITED (BVI)
ISSUED SHARE CAPITAL 500 SHARES OF US$1.00 EACH
NO. OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- --------------- --------------
Fine Power Limited 80 16
Honour Rise Services Limited 220 44
Quality Idea Limited 60 12
Sino Investments Holdings Limited 45 9
Xinhua Finance Media Limited 95 19
--- ---
TOTAL: 500 100
=== ===
(2) CHINA LEAD PROFITS LIMITED (BVI)
ISSUED SHARE CAPITAL 1 SHARE OF US$1.00 EACH
NO. OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- --------------- --------------
Upper Step Holdings Limited 1 100
--- ---
TOTAL: 1 100
=== ===
(3) JIA LUO CONSULTING LIMITED (PRC WFOE)
REGISTERED CAPITAL US$3,200,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
China Lead Profits Limited US$3,200,000 100
------------ ---
TOTAL: US$3,200,000 100
============ ===
69
<PAGE>
(4) SHANGHAI YUANZHI ADVERTISING CO., LTD (PRC)
REGISTERED CAPITAL RMB100,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Li Guang Jie RMB 49,000 49
Wan Jun RMB 51,000 51
---------- ---
TOTAL: RMB100,000 100
========== ===
(5) ACCORD GROUP INVESTMENTS LIMITED (BVI)
ISSUED SHARE CAPITAL 100 SHARES OF US$1.00 EACH
NO. OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- --------------- --------------
Sino Investments Holdings Limited 81 81
Xinhua Finance Media Limited 19 19
--- ---
TOTAL: 100 100
=== ===
(6) GREAT TRIUMPH INVESTMENTS LIMITED (BVI)
ISSUED SHARE CAPITAL 1 SHARE OF US$1.00 EACH
NO. OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- --------------- --------------
Accord Group Investments Limited 1 100
--- ---
TOTAL: 1 100
=== ===
(7) NEW CHINA MEDIA CO., LIMITED (PRC WFOE)
REGISTERED CAPITAL US$1,400,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Great Triumph Investments Limited US$1,400,000 100
------------ ---
TOTAL: US$1,400,000 100
============ ===
(8) BEIJING SHIJI GUANGNIAN ADVERTISING CO., LIMITED (PRC)
REGISTERED CAPITAL RMB3,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Wang Yong Hong RMB2,514,000 83.8
Yu Gang RMB 486,000 16.2
------------ ----
TOTAL: RMB3,000,000 100
============ ====
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(9) MING SHING INTERNATIONAL LIMITED (BVI)
ISSUED SHARE CAPITAL 1,000 SHARES OF US$1.00 EACH
NO. OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- --------------- --------------
Xinhua Finance Media Limited 1,000 100
----- ---
TOTAL: 1,000 100
===== ===
(10) UPPER WILL ENTERPRISES LIMITED (BVI)
ISSUED SHARE CAPITAL 2 SHARES OF US$1.00 EACH
NO. OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- --------------- --------------
Ming Shing International Limited 2 100
--- ---
TOTAL: 2 100
=== ===
(11) ACTIVE ADVERTISING AGENCY LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 2 SHARES OF HK$1.00 EACH
NO. OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- --------------- --------------
Upper Will Enterprises Limited 2 100
--- ---
TOTAL: 2 100
=== ===
(12) ACTIVE ADVERTISING (GUANGZHOU) CO., LTD. (PRC WFOE)
REGISTERED CAPITAL US$300,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Active Advertising Agency Limited US$300,000 100
---------- ---
TOTAL: US$300,000 100
========== ===
(13) BEIJING CENTURY MEDIA CULTURE CO., LTD. (PRC)
REGISTERED CAPITAL RMB1,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
An Li Zhang RMB 500,000 50
Wang Yong Hong RMB 500,000 50
------------ ---
TOTAL: RMB1,000,000 100
============ ===
71
<PAGE>
(14) BEIJING WORKSHOP COMMUNICATIONS CO., LTD. (PRC)
REGISTERED CAPITAL RMB1,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Century Media Culture Co.,
Ltd. RMB 900,000 90
Yu Gang RMB 50,000 5
Xia Huai RMB 50,000 5
------------ ---
TOTAL: RMB1,000,000 100
============ ===
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<PAGE>
(15) BEIJING GOLDEN WAYS CULTURE DEVELOPMENT CO., LTD. (PRC)
REGISTERED CAPITAL RMB300,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Century Media Culture Co.,
Ltd. RMB270,000 90
Yu Gang RMB 15,000 5
Xia Huai RMB 15,000 5
---------- ---
TOTAL: RMB300,000 100
========== ===
(16) SHENZHEN ACTIVE TRINITY CO., LTD. (PRC)
REGISTERED CAPITAL RMB300,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
An Li Zhang RMB150,000 50
Wang Yong Hong RMB150,000 50
---------- ---
TOTAL: RMB300,000 100
========== ===
(17) BEIJING TAIDE ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB10,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
An Li Zhang RMB 5,000,000 50
Wang Yong Hong RMB 5,000,000 50
------------- ---
TOTAL: RMB10,000,000 100
============= ===
73
<PAGE>
(18) SHANGTUO ZHIYANG INTERNATIONAL ADVERTISING (BEIJING) CO., LTD. (PRC)
REGISTERED CAPITAL RMB1,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising Co., Ltd. RMB 800,000 80
Wang Xiao Yu RMB 200,000 20
------------ ---
TOTAL: RMB1,000,000 100
============ ===
(19) BEIJING LONGMEI TELEVISOIN AND BROADCAST ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB500,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising Co., Ltd. RMB400,000 80
Zhou Jia RMB 50,000 10
Zhang Yiran RMB 50,000 10
---------- ---
TOTAL: RMB500,000 100
========== ===
(20) BEIJING JINLONG RUNXIN ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB500,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising Co., Ltd. RMB400,000 80
Zhou Jia RMB 50,000 10
Zhang Yu Yu RMB 50,000 10
---------- ---
TOTAL: RMB500,000 100
========== ===
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<PAGE>
(21) SHANGHAI YUANXIN ADVERTISING CO., LTD. (PRC)
REGISTERED CAPITAL RMB2,000,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
Beijing Taide Advertising Co., Ltd. RMB1,600,000 80
Mo Hai Hong RMB 400,000 20
------------ ---
TOTAL: RMB2,000,000 100
============ ===
(22) ECONWORLD MEDIA LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 350,000 SHARES OF HK$0.01 EACH
NO OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- -------------- --------------
Best Gain Group Ltd. 10,000 2.86
Cheers Perfect Ltd. 20,000 5.71
Cheung Wah Keung 10,000 2.86
EconWorld Holdings Ltd. 15,000 4.29
Gainful Concept Ltd. 30,000 8.57
Justly Investment International Ltd. 5,000 1.42
Lo Li Chun 30,000 8.57
Lo Shui Ling Raymond 10,000 2.86
Quach Fung Vi 10,000 2.86
Xinhua Finance Media Limited 210,000 60.00
------- -----
TOTAL: 350,000 100
======= =====
(23) FINANCIAL WORLD (SHANGHAI) CO., LTD. (PRC)
REGISTERED CAPITAL US$210,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
EconWorld Media Limited US$210,000 100
---------- ---
TOTAL: US$210,000 100
========== ===
(24) ECONWORLD (SHANGHAI) CO., LTD. (PRC)
REGISTERED CAPITAL US$140,000
EQUITY INTEREST
EQUITY INTEREST HOLDER EQUITY INTEREST PERCENTAGE (%)
---------------------- --------------- ---------------
EconWorld Media Limited US$140,000 100
---------- ---
TOTAL: US$140,000 100
========== ===
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<PAGE>
(25) ECONWORLD PUBLISHING LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 100,000 SHARES OF HK$0.01 EACH
NO OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- -------------- --------------
ECONWORLD MEDIA LIMITED 99,999 100
Fan Cho Tak Alex 1
(hold in trust
for EconWorld
Media Limited)
-------------- ---
TOTAL: 100,000 100
============== ===
(26) MONEY JOURNAL PUBLICATION LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 1,000 SHARES OF HK$0.01 EACH
NO OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- -------------- --------------
ECONWORLD MEDIA LIMITED 999 100
Fan Cho Tak Alex 1
(hold in trust
for EconWorld
Media Limited)
-------------- ---
TOTAL: 1,000 100
============== ===
(27) MONEY JOURNAL ADVERTISING COMPANY LIMITED (HONG KONG)
ISSUED SHARE CAPITAL 10,000 SHARES OF HK$1.00 EACH
NO OF ORDINARY SHAREHOLDING
SHAREHOLDER SHARES PERCENTAGE (%)
----------- -------------- --------------
MONEY JOURNAL PUBLICATION LIMITED 10,000 100
------ ---
TOTAL: 10,000 100
====== ===
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Material Contracts
NATURE OF USD CONTRACT
COMPANY CLIENT NAME IN ENGLISH CONTRACT RMB @8.05 PERIOD
------- ---------------------------- ----------- ------------- ------------ ------------
Yuanxin Shanghai Christine Food Co.,
Ltd. Advertising 1,700,000.00 211,180.12 1/06 - 12/06
Shanghai Yangzhi Media Co.,
Ltd. 6,000,000.00 745,341.61 2/06 - 12/06
------------- ------------
7,700,000.00 956,521.74
Taide Beijing Be-one Advertising
Co., Ltd. Advertising 2,400,000.00 298,136.65 2/06 --
Beijing Longmei Chuangli Media Group Advertising 3,023,030.00 375,531.68 1/06 - 5/06
Beijing Fulite Industrial
Co.,Ltd. Advertising 2,400,000.00 298,136.65 1/06 - 12/06
Beijing diantong Advertising
co.,Ltd. Advertising 2,343,036.00 297,060.37 1/06 - 5/06
Guangzhou Tianhen Xingzhi
Advertising Co., Ltd. Advertising 2,000,000.00 248,447.20 3/06 - 12/06
Shengshi Greatwall
Advertising Co., Ltd. Advertising 1,821,490.00 226,272.05 1/06 - 5/06
Beijing Yuanqi East
Advertising co., Ltd. Advertising 1,800,000.00 223,602.48 3/06 - 12/06
Guangdong Kailuo Advertising
Co., Ltd. Advertising 1,453,800.00 180,596.27 1/06 - 5/06
Beijing Jianguo Hospital Advertising 1,339,200.00 166,360.25 1/06 - 12/06
Beijing Hongzhi Shidai
Advertising Co., Ltd. Advertising 1,311,860.00 162,963.98 1/06 - 5/06
Shanghai Liaobeina
Advertising Co., Ltd. Advertising 1,096,810.00 136,249.69 1/06 - 5/06
------------- ------------
18,589,226.00 2,309,220.62
Active Advertising Agency King Sturge LLP Advertising 811,973.84 100,866.32 2/06 - 3/06
Limited
Beijing Century Media Haishi Tourism Weishi Media
Culture Co., Ltd. Co., Ltd. Production 2,954,880.00 367,065.84 1/06 - 12/07
Beijing Century Media China Radio International
Culture Co., Ltd. (for FM91.5) -
Beijiatong Wanwei Yihua Golf
Sports Technology Service
Co., Ltd. Advertising 1,475,000.00 183,229.81 1/06 - 12/06
China Radio International
(for FM91.5) - Mingsheng
Bank Advertising 817,000 101,490.68 4/06 - 12/06
77
<PAGE>
EXECUTION COPY
SCHEDULE OF INDEBTEDNESS
List of Indebtedness of Credit Parties existing as of the date of the Credit
Agreement:-
Amount of
Date of loan Lender Borrower Indebtedness Repayment Date
------------ ------------------- ------------------- ------------------ --------------
Mar 2, 06 Xinhua Financial Xinhua Finance US$2 million plus On demand
Network Media Limited interest at 4% per
annum
Feb 28, 2006 Xinhua Finance Upper Step Holdings US$2,000,000 On demand
Media Limited Limited
Mar 6, 2006 Upper Step Holdings China Lead Profits US$2,000,000 On demand
Limited Limited
Mar 10, 2006 China Lead Profits Jia Luo Consulting US$2,000,000 On demand
Limited
Oct 18, 2005 Xinhua Financial Econworld Media US$300,000 plus June 30, 2006
Network Limited interest at 4% per
annum
Oct 18, 2005 Xinhua Financial Econworld Media US$200,000 plus June 30, 2006
Network Limited interest at 4% per
annum
Feb 14, 2006 Xinhua Financial Econworld Media US$1,330,000 plus June 30, 2006
Network Limited interest at 4% per
annum
1
<PAGE>
[FINANCIAL PROJECTION OF THE COMPANY]
2
<PAGE>
EXHIBIT E
FORMS OF OPINIONS OF COMPANY'S COUNSELS
3
<PAGE>
[16] March 2006
Patriarch Partners Media Holdings, LLC DIRECT LINE: 2842 9531
c/o Patriarch Partners, LLC E-MAIL:
40 Wall Street, 25thFloor anna.chong@conyersdillandpearman.com
New York, NY 10005 OUR REF: #890621/209625
YOUR REF: __________________________
Patriarch Partners Agency Services, LLC
227 West Trade Street, Suite 1400
Charlotte, North Carolina 28202
Dear Sirs
MING SHING INTERNATIONAL LIMITED
UPPER WILL ENTERPRISES LIMITED (TOGETHER, THE "COMPANIES")
We have acted as special legal counsel in the British Virgin Islands to Xinhua
Finance Media Limited ("XFM") in connection with:
i. a credit agreement (the "Credit Agreement") dated [16] March 2006 among
XFM, the Companies, Active Advertising Agency Limited (together with the
Companies, the "Pledgors"), Patriarch Partners Media Holdings, LLC (the
"Lender") and Patriarch Partners Agency Services, LLC (the "Agent);
ii. a guaranty (the "Guaranty") dated [16] March 2006 by Ming Shing
International Limited (the "Ming Shing Guaranty");
iii. a guaranty (the "Guaranty") dated [16] March 2006 by Upper Will Enterprises
Limited (the "Upper Will Guaranty" and together with the Ming Shing
Guaranty, the "Guaranties");
iv. a security agreement (the "Debt Security Agreement") dated [16] March 2006
among XFM, the Pledgors and the Agent;
v. a pledge agreement (the "Debt Pledge Agreement") dated [16] March 2006
among XFM, Ming Shing International Limited, Active Advertising Agency
Limited and the Agent;
vi. a security agreement (the "Equity Security Agreement") dated [16] March
2006 among the XFM, the Pledgors and Patriarch Partners Media Holdings, LLC
(the "Investor");
vii. a pledge agreement (the "Equity Pledge Agreement") dated [16] March 2006
among XFM, Ming Shing International Limited, Active Advertising Agency
Limited and the Investor;
4
<PAGE>
viii. a share mortgage (the "Debt Share Mortgage") dated [16] March 2006 between
Upper Will Enterprises Limited ("Upper Will") and the Lender; and
ix. a share mortgage (the "Equity Share Mortgage") dated [16] March 2006
between Upper Will Enterprises Limited ("Upper Will") and the Agent.
The Debt Share Mortgage and the Equity Share Mortgage are together the "Share
Mortgages".
For the purposes of giving this opinion, we have examined the following
documents:
(i) a copy of the signed Credit Agreement;
(ii) a copy of the signed Ming Shing Guarantee;
(iii) a copy of the signed Upper Will Guarantee;
(iv) a copy of the signed Debt Security Agreement;
(v) a copy of the signed Debt Pledge Agreement;
(vi) a copy of the signed Equity Security Agreement;
(vii) a copy of the signed Equity Pledge Agreement;
(viii) a copy of the signed Debt Share Mortgage; and
(ix) a copy of the signed Equity Share Mortgage.
The documents listed in items (i) through (ix) above are herein sometimes
collectively referred to as the "Documents" (which term does not include any
other instrument or agreement whether or not specifically referred to therein or
attached as an exhibit or schedule thereto).
We have also reviewed the memorandum of association and the articles of
association of the Companies, as obtained from the Registrar of Corporate
Affairs on 3 March 2006, minutes of meetings of the directors of each of the
Companies dated [16] March 2006 and written resolutions of their shareholders,
each passed on [16] March, 2006 (the "Minutes"), the two certificates of good
standing in respect of the Companies issued by the Registrar of Corporate
Affairs on 3 March 2006 and such other documents and made such enquiries as to
questions of law as we have deemed necessary in order to render the opinion set
forth below.
We have assumed (a) the genuineness and authenticity of all signatures and the
conformity to the originals of all copies (whether or not certified) examined by
us and the authenticity
5
<PAGE>
and completeness of the originals from which such copies were taken; (b) that
where a document has been examined by us in draft form, it will be or has been
executed in the form of that draft, and where a number of drafts of a document
have been examined by us all changes thereto have been marked or otherwise drawn
to our attention; (c) the capacity, power and authority of each of the parties
to the Documents, other than the Companies, to enter into and perform its
respective obligations under the Documents; (d) the due execution and delivery
of the Documents by each of the parties thereto, other than the Companies, and
the physical delivery thereof by the Companies with an intention to be bound
thereby; (e) the accuracy and completeness of all factual representations made
in the Documents and other documents reviewed by us; (f) that the resolutions
contained in the Minutes were passed at one or more duly convened, constituted
and quorate meetings or by unanimous written resolutions, remain in full force
and effect and have not been rescinded or amended; (g) that there is no
provision of the law of any jurisdiction, other than the British Virgin Islands,
which would have any implication in relation to the opinions expressed herein;
(h) the validity and binding effect under the laws of the State of New York (the
"New York Laws") of the documents listed in items (i) through (vii) above which
are expressed to be governed by New York Laws in accordance with their
respective terms; (i) the validity and binding effect under New York Laws of the
submission by the Companies pursuant to the documents listed in items (i)
through (vii) above to the exclusive jurisdiction of the state and federal
courts located within the county of New York, State of New York (the "New York
Courts"); (j) the validity and binding effect under the laws of the Hong Kong
Special Administrative Region of the People's Republic of China (the "Hong Kong
Laws") of the Share Mortgages which are expressed to be governed by Hong Kong
Laws in accordance with their respective terms; (k) the validity and binding
effect under Hong Kong Laws of the submission by Upper Will pursuant to the
Share Mortgages to the non-exclusive jurisdiction of the courts of Hong Kong
(the "Hong Kong Courts") (the New York Laws and the Hong Kong Laws are
collectively referred to as the "Foreign Laws" and the New York Courts and the
Hong Kong Courts are collectively referred to as the "Foreign Courts") and (j)
that on the date of entering into the Documents the Companies are and after
entering into the Documents will be able to pay their liabilities as they become
due.
The obligations of the Companies under the Documents (a) will be subject to the
laws from time to time in effect relating to bankruptcy, insolvency,
liquidation, possessory liens, rights of set off, reorganisation, merger,
consolidation, moratorium or any other laws or legal procedures, whether of a
similar nature or otherwise, generally affecting the rights of creditors; (b)
will be subject to statutory limitation of the time within which proceedings may
be brought; (c) will be subject to general principles of equity and, as such,
specific performance and injunctive relief, being equitable remedies, may not be
available; (d) may not be given effect to by a British Virgin Islands court,
whether or not it was applying the respective Foreign Laws, if and to the extent
they constitute the payment of an amount which is in the nature of a penalty and
not in the nature of liquidated damages; (e) may not be given effect by a
British Virgin Islands court to the extent that they are to be performed in a
jurisdiction outside the British Virgin Islands and such performance would be
illegal under the laws of that jurisdiction. Notwithstanding any contractual
submission to the
6
<PAGE>
jurisdiction of specific courts, a British Virgin Islands court has inherent
discretion to stay or allow proceedings in the British Virgin Islands courts.
We express no opinion as to the enforceability of any provision of the Documents
which provides for the payment of a specified rate of interest on the amount of
a judgment after the date of judgment or which purports to fetter the statutory
powers of the Companies.
We have made no investigation of and express no opinion in relation to the laws
of any jurisdiction other than the British Virgin Islands. This opinion is to be
governed by and construed in accordance with the laws of the British Virgin
Islands and is limited to and is given on the basis of the current law and
practice in the British Virgin Islands. This opinion is issued solely for your
benefit and is not to be relied upon by any other person, firm or entity or in
respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Companies are duly incorporated and existing under the laws of the
British Virgin Islands in good standing (meaning solely that it has not
failed to make any filing with any British Virgin Islands governmental
authority or to pay any British Virgin Islands government fee or tax which
would make it liable to be struck off the Register of Companies and thereby
cease to exist under the laws of the British Virgin Islands).
2. The Companies have the necessary corporate power and authority to enter
into and perform their obligations under the Documents. The execution and
delivery of the Documents by the Companies and the performance by the
Companies of their obligations thereunder will not violate the memorandum
of association or articles of association of the Companies nor any
applicable law, regulation, order or decree in the British Virgin Islands.
3. The Companies have taken all corporate action required to authorise their
execution, delivery and performance of the Documents. The Documents have
been duly executed and delivered by or on behalf of the Companies, and
constitute the valid and binding obligations of the Companies in accordance
with their respective terms thereof.
4. No order, consent, approval, licence, authorisation or validation of or
exemption by any government or public body or authority of the British
Virgin Islands or any sub-division thereof is required to authorise or is
required in connection with the execution, delivery, performance and
enforcement of the Documents.
5. It is not necessary or desirable to ensure the enforceability in the
British Virgin Islands of the Documents that they be registered in any
register kept by, or filed with, any governmental authority or regulatory
body in the British Virgin Islands. However, to the extent that any of the
Documents creates a charge over assets of the Companies, it may be
desirable to ensure the priority in the British Virgin Islands of the
charge that it be registered in the Register of Mortgages, Charges and
other
7
<PAGE>
Encumbrances of the Companies at their registered offices in accordance
with Section 70A of the International Business Companies Act (Cap. 291)
(the "Act") and that a copy of such register be registered by the Registrar
of Corporate Affairs pursuant to Section 111A of the Act. On registration
in the Register of Mortgages, Charges and Other Encumbrances, to the extent
that British Virgin Islands law governs the priority of a charge, such
charge will have priority in the British Virgin Islands over any
unregistered charges, and over any subsequently registered charges, in
respect of the assets which are the subject of the charge. A fee of $50
will be payable in respect of the registration by the Registrar of
Corporate Affairs pursuant to Section 111A of the Act.
While there is no exhaustive definition of a charge under British Virgin
Islands law, a charge normally has the following characteristics:
(i) it is a proprietary interest granted by way of security which entitles
the chargee to resort to the charged property only for the purposes of
satisfying some liability due to the chargee (whether from the chargor
or a third party); and
(ii) the chargor retains an equity of redemption to have the property
restored to him when the liability has been discharged.
However, as the Documents are governed by the respective Foreign Laws, the
question of whether they would possess these particular characteristics
would be determined under the respective Foreign Laws.
6. The Documents will not be subject to ad valorem stamp duty in the British
Virgin Islands.
7. The choice of the respective Foreign Laws as the governing law of the
Documents is a valid choice of law and would be recognised and given effect
to in any action brought before a court of competent jurisdiction in the
British Virgin Islands, except for those laws (i) which such court
considers to be procedural in nature, (ii) which are revenue or penal laws
or (iii) the application of which would be inconsistent with public policy,
as such term is interpreted under the laws of the British Virgin Islands.
The submission in the documents listed in items (i) through (vii) above to
the exclusive jurisdiction of the New York Courts is valid and binding upon
the Companies. The submission in the Share Mortgages to the non-exclusive
jurisdiction of the Hong Kong Courts is valid and binding upon Upper Will.
8. The courts of the British Virgin Islands would recognise as a valid
judgment, a final and conclusive judgment in personam obtained in the
respective Foreign Courts against the Companies based upon the Documents
under which a sum of money is payable (other than a sum of money payable in
respect of multiple damages, taxes or other charges of a like nature or in
respect of a fine or other penalty) and would give a judgment based thereon
provided that (a) such courts had proper jurisdiction
8
<PAGE>
over the parties subject to such judgment, (b) such courts did not
contravene the rules of natural justice of the British Virgin Islands, (c)
such judgment was not obtained by fraud, (d) the enforcement of the
judgment would not be contrary to the public policy of the British Virgin
Islands, (e) no new admissible evidence relevant to the action is submitted
prior to the rendering of the judgment by the courts of the British Virgin
Islands and (f) there is due compliance with the correct procedures under
the laws of the British Virgin Islands.
9. Based solely on a search of the public records in respect of the Companies
maintained at the offices of the Registrar of Corporate Affairs at 11:00am
on 14 March 2006 which would not reveal details of matters which have not
been lodged for registration or have been lodged for registration but not
actually registered at the time of our search) and a search of the Index of
Civil Suits maintained at the Supreme Court Registry, Road Town, Tortola
British Virgin Islands conducted at 3:00pm on 14 March 2006 (which would
not reveal details of proceedings which have been filed but not actually
entered in the Index of Civil Suits at the time of our search), there are
no judgments against any of the Companies, nor any legal or governmental
proceedings pending in the British Virgin Islands to which any of the
Companies is subject, and no steps have been, or are being, taken in the
British Virgin Islands for the appointment of a receiver, administrator or
liquidator to, or for the winding-up, dissolution, reconstruction or
reorganisation of, any of the Companies (however, it should be noted that
failure to file notice of appointment of a receiver does not invalidate the
receivership but only gives rise to penalties on the part of the receiver).
Yours faithfully
CONYERS DILL & PEARMAN
9
<PAGE>
[16] March 2006
Patriarch Partners Media Holdings, LLC DIRECT LINE: 2842 9531
c/o Patriarch Partners, LLC E-MAIL:
40 Wall Street, 25thFloor anna.chong@conyersdillandpearman.com
New York, NY 10005 OUR REF: M#870617/209621
YOUR REF: __________________________
Patriarch Partners Agency Services, LLC
227 West Trade Street, Suite 1400
Charlotte, North Carolina 28202
Dear Sirs
XINHUA FINANCE MEDIA LIMITED (THE "COMPANY")
We have acted as special legal counsel in the Cayman Islands to the Company in
connection with (i) a credit agreement (the "Credit Agreement") dated [16] March
2006 among the Company, the Guarantors named therein, Patriarch Partners Media
Holdings, LLC (the "Lender") and Patriarch Partners Agency Services, LLC (the
"Agent) and (ii) a share purchase agreement (the "Share Purchase Agreement")
dated [16] March 2006 between the Company and Patriarch Partners Media Holdings,
LLC (the "Investor") in connection with the issue of convertible preferred
shares ("Convertible Preferred Shares") in the capital of the Company.
For the purposes of giving this opinion, we have examined the following
documents:
(i) a copy of the signed Credit Agreement;
(ii) a copy of the signed Note dated [16] March 2006 by the Company;
(iii) a copy of a signed security agreement (the "Debt Security Agreement")
dated [16] March 2006 among the Company, the other Grantors named therein
and the Agent;
(iv) a copy of a signed pledge agreement (the "Debt Pledge Agreement") dated
[16] March 2006 among the Company, the other Pledgors named therein and the
Agent;
(v) a copy of the signed Share Purchase Agreement;
(vi) a copy of a signed security agreement (the "Equity Security Agreement")
dated [16] March 2006 among the Company, the other Grantors named therein
and the Investor;
(vii) a copy of a signed pledge agreement (the "Equity Pledge Agreement") dated
[16] March 2006 among the Company, the other Pledgors named therein and the
Investor;
10
<PAGE>
(viii) a copy of a signed investor rights agreement (the "Investor Rights
Agreement") dated [16] March 2006 among the Company, the Investor and
Xinhua Finance Limited;
(ix) a share mortgage (the "Debt Share Mortgage") dated [16] March 2006 between
the Company and the Lender; and
(x) a share mortgage (the "Equity Share Mortgage") dated [16] March 2006
between the Company and the Agent.
The Debt Share Mortgage and the Equity Share Mortgage are together the "Share
Mortgages".
The documents listed in items (i) through (x) above are herein sometimes
collectively referred to as the "Documents" (which term does not include any
other instrument or agreement whether or not specifically referred to therein or
attached as an exhibit or schedule thereto).
We have also reviewed the Memorandum and Articles of Association of the Company,
minutes of a meeting of its directors and written resolutions of its
shareholders, each passed on [16] March 2006 (the "Minutes"), a Certificate of
Good Standing issued by the Registrar of Companies in relation to the Company on
2 March 2006 (the "Certificate Date") and such other documents and made such
enquiries as to questions of law as we have deemed necessary in order to render
the opinion set forth below.
We have assumed (a) the genuineness and authenticity of all signatures and the
conformity to the originals of all copies (whether or not certified) examined by
us and the authenticity and completeness of the originals from which such copies
were taken; (b) that where a document has been examined by us in draft form, it
will be or has been executed in the form of that draft, and where a number of
drafts of a document have been examined by us all changes thereto have been
marked or otherwise drawn to our attention; (c) the capacity, power and
authority of each of the parties to the Documents, other than the Company, to
enter into and perform its respective obligations under the Documents; (d) the
due execution and delivery of the Documents by each of the parties thereto,
other than the Company, and the physical delivery thereof by the Company with an
intention to be bound thereby; (e) the accuracy and completeness of all factual
representations made in the Documents and other documents reviewed by us; (f)
that the resolutions contained in the Minutes were passed at one or more duly
convened, constituted and quorate meetings or by unanimous written resolutions,
remain in full force and effect and have not been rescinded or amended; (g) that
there is no provision of the law of any jurisdiction, other than the Cayman
Islands, which would have any implication in relation to the opinions expressed
herein; (h) the validity and binding effect under the laws of the State of New
York (the "New York Laws") of the documents which are expressed to be governed
by New York Laws in accordance with their respective terms; (i) the validity and
binding effect under the New York Laws of the submission by the Company pursuant
to the documents referred to
11
<PAGE>
in items (i) through (viii) above to the exclusive jurisdiction of the state and
federal courts located within the County of New York, State of New York (the
"New York Courts"); (j) the validity and binding effect under the laws of the
Hong Kong Special Administrative Region of the People's Republic of China (the
"Hong Kong Laws") of the Share Mortgages which are expressed to be governed by
Hong Kong Laws in accordance with their respective terms; (k) the validity and
binding effect under Hong Kong Laws of the submission by the Company pursuant to
the Share Mortgages to the non-exclusive jurisdiction of the courts of Hong Kong
(the "Hong Kong Courts") (the New York Laws and the Hong Kong Laws are
collectively referred to as the "Foreign Laws" and the New York Courts and the
Hong Kong Courts are collectively referred to as the "Foreign Courts") and (k)
that on the date of entering into the Documents the Company is and after
entering into the Documents will be able to pay its liabilities as they become
due.
The term "enforceable" as used in this opinion means that an obligation is of a
type which the courts of the Cayman Islands enforce. It does not mean that those
obligations will be enforced in all circumstances. In particular, the
obligations of the Company under the Documents and the rights attaching to the
Convertible Preferred Shares and the Common Shares (as defined in the Articles
of Association of the Company) (a) will be subject to the laws from time to time
in effect relating to bankruptcy, insolvency, liquidation, possessory liens,
rights of set off, reorganisation, amalgamation, moratorium or any other laws or
legal procedures, whether of a similar nature or otherwise, generally affecting
the rights of creditors; (b) will be subject to statutory limitation of the time
within which proceedings may be brought; (c) will be subject to general
principles of equity and, as such, specific performance and injunctive relief,
being equitable remedies, may not be available; (d) may not be given effect to
by a Cayman Islands court, whether or not it was applying the Foreign Laws, if
and to the extent they constitute the payment of an amount which is in the
nature of a penalty and not in the nature of liquidated damages; (e) may not be
given effect by a Cayman Islands court to the extent that they are to be
performed in a jurisdiction outside the Cayman Islands and such performance
would be illegal under the laws of that jurisdiction; and (f) in the case of the
Share Purchase Agreement, may be subject to the common law rule that damages
against the Company are only available when the Investor rescinds the Share
Purchase Agreement. Notwithstanding any contractual submission to the
jurisdiction of specific courts, a Cayman Islands court has inherent discretion
to stay or allow proceedings in the Cayman Islands against the Company under the
Documents if there are other proceedings in respect of those Documents
simultaneously underway against the Company in another jurisdiction.
We express no opinion as to validity or the binding effect of obligations to
make any payment at an increased rate on overdue amounts or on the happening of
an event or default or to pay a specified rate or interest on the amount of a
judgment after the date of judgement. In addition, any provision expressly or
impliedly providing that certain statements, calculations and/or certificates
are incorrect on their face or fraudulent will not necessarily prevent judicial
enquiry into the merits of a claim of an aggrieved party. We express no opinion
in respect of the enforceability of any provision in the Documents which
purports to fetter the statutory powers of the Company.
12
<PAGE>
We have made no investigation of and express no opinion in relation to the laws
of any jurisdiction other than the Cayman Islands. This opinion is to be
governed by and construed in accordance with the laws of the Cayman Islands and
is limited to and is given on the basis of the current law and practice in the
Cayman Islands. This opinion is issued solely for your benefit and is not to be
relied upon by any other person, firm or entity or in respect of any other
matter. On the basis of and subject to the foregoing, we are of the opinion
that:
1. As at the Certificate Date, the Company is duly incorporated and existing
under the laws of the Cayman Islands in good standing (meaning solely that
it has not failed to make any filing with any Cayman Islands government
authority or to pay any Cayman Islands government fee which would make it
liable to be struck off by the Registrar of Companies and thereby cease to
exist under the laws of the Cayman Islands).
2. The authorised share capital of the Company as at the date hereof is
US$100,000 divided into 978,000,000 Common Shares of a nominal or par value
of US$0.001 each and 22,000,000 Preferred Shares of a nominal or par value
US$0.001 each. Based on the share register of the Company, 2,000 Common
Shares are issued and outstanding as at the date hereof.
3. The Company has the necessary corporate power and authority to enter into
and perform its obligations under the Documents. The execution and delivery
of the Documents by the Company and the performance by the Company of its
obligations thereunder will not violate the Memorandum or Articles of
Association of the Company nor any applicable law, regulation, order or
decree in the Cayman Islands.
4. The Company has taken all corporate action required to authorise its
execution, delivery and performance of the Documents. The Documents have
been duly executed and delivered by or on behalf of the Company, and
constitute the valid and binding obligations of the Company in accordance
with the terms thereof.
5. No order, consent, approval, licence, authorisation or validation of or
exemption by any government or public body or authority of the Cayman
Islands or any sub-division thereof is required to authorise or is required
in connection with the execution, delivery, performance and enforcement of
the Documents.
6. It is not necessary or desirable to ensure the enforceability in the Cayman
Islands of the Documents that they be registered in any register kept by,
or filed with, any governmental authority or regulatory body in the Cayman
Islands. However, to the extent that any of the Documents creates a charge
over assets of the Company, the Company and its Directors are under an
obligation to enter such charge in the Register of Mortgages and Charges of
the Company in accordance with section 54 of the Companies Law. While there
is no exhaustive definition of a charge under Cayman Islands law, a charge
normally has the following characteristics:
13
<PAGE>
(i) it is a proprietary interest granted by way of security which entitles
the chargee to resort to the charged property only for the purposes of
satisfying some liability due to the chargee (whether from the chargor
or a third party); and
(ii) the chargor retains an equity of redemption to have the property
restored to him when the liability has been discharged.
However, as the Documents are governed by the Foreign Laws, the question of
whether they would possess these particular characteristics would be
determined under the Foreign Laws.
7. The Documents will be subject to nominal stamp duty if they are executed in
or brought into the Cayman Islands but will otherwise not be subject to
stamp duty.
8. The choice of the Foreign Laws as the governing law of the Documents is a
valid choice of law and would be recognised and given effect to in any
action brought before a court of competent jurisdiction in the Cayman
Islands, except for those laws (i) which such court considers to be
procedural in nature, (ii) which are revenue or penal laws or (iii) the
application of which would be inconsistent with public policy, as such term
is interpreted under the laws of the Cayman Islands. The submission in the
documents listed in items (i) through (vii) above to the exclusive
jurisdiction of the New York Courts is valid and binding upon the Company.
The submission in the Share Mortgages to the non-exclusive jurisdiction of
the Hong Kong Courts is valid and binding upon the Company.
9. The courts of the Cayman Islands would recognise as a valid judgment, a
final and conclusive judgment in personam obtained in the Foreign Courts
against the Company based upon the Documents under which a sum of money is
payable (other than a sum of money payable in respect of multiple damages,
taxes or other charges of a like nature or in respect of a fine or other
penalty) and would give a judgment based thereon provided that (a) such
courts had proper jurisdiction over the parties subject to such judgment;
(b) such courts did not contravene the rules of natural justice of the
Cayman Islands; (c) such judgment was not obtained by fraud; (d) the
enforcement of the judgment would not be contrary to the public policy of
the Cayman Islands; (e) no new admissible evidence relevant to the action
is submitted prior to the rendering of the judgment by the courts of the
Cayman Islands; and (f) there is due compliance with the correct procedures
under the laws of the Cayman Islands.
10. The Convertible Preferred Shares, when issued and paid for in accordance
with the Share Purchase Agreement, will be validly issued, fully paid and
non-assessable (which terms when used herein means that no further sums are
required to be paid by the holder thereof in connection with the issue
thereof). The Convertible Preferred Shares and the Common Shares (as
defined as aforesaid) will benefit from such rights and entitlements and be
bound by such obligations as are ascribed
14
<PAGE>
thereto and imposed thereon in the Articles of Association of the Company
(including the Schedules thereto) which rights and obligations, and in
particular the rights and obligations set out in Schedule 2 to the Articles
of Association, are enforceable in accordance with the terms thereof,
including by the holders of the Convertible Preferred Shares, and will
constitute valid and binding obligations of the Company and its members.
11. Based solely upon a search of the Register of Writs and other Originating
Process of the Grand Court of the Cayman Islands conducted at 3.15pm on 14
March 2006, (which would not reveal details of proceedings which have been
filed but not actually entered in the Register of Writs and other
Originating Process of the Grand Court of the Cayman Islands at the time of
our search), there are no judgments against the Company, nor any legal or
governmental proceedings, nor any petitions to wind up the Company pending
in the Grand Court of the Cayman Islands to which the Company is subject.
Yours faithfully
Conyers Dill & Pearman
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Our Email Address : cng@prestongates.com
Direct Line : (852) 2230-3558
Our Ref : 49528-00025/CSMN/ewcm
Date : 16 March 2006
PRIVILEGED & CONFIDENTIAL
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC
40 Wall Street, 25th Floor
New York, NY 10005
and
PATRIARCH PARTNERS AGENCY SERVICES, LLC
227 West Trade Street, Suite 1400
Charlotte, North Carolina 28202
Dear Sirs
RE: ACTIVE ADVERTISING AGENCY LIMITED (THE "ACTIVE ADVERTISING") ECONWORLD MEDIA
LIMITED ("ECONWORLD")
(Active Advertising and EconWorld collectively the "COMPANIES" and each one
a "COMPANY" as the context requires)
We are lawyers qualified to practice law in the Hong Kong Special Administrative
Region of the People's Republic of China ("HONG KONG") and we act as Hong Kong
legal advisers on the instructions of Xinhua Finance Media Limited ("XFM"). We
have been asked to provide you with this legal opinion in connection with:
(1) the credit agreement (the "CREDIT AGREEMENT") dated 16 March 2006 among (1)
XFM as borrower, (2) the subsidiaries of XFM from time to time as
guarantors, (3) Patriarch Partners Media Holdings, LLC (the "LENDER"); and
(4) Patriarch Partners Agency Services, LLC (the "AGENT") as agent for the
Lenders;
(2) the guaranty ("GUARANTY") dated 16 March 2006 made by the Active
Advertising as a guarantor;
(3) the share purchase agreement dated 16 March 2006 (the "SHARE PURCHASE
AGREEMENT") between XFM and the Lender;
(4) the security agreement dated 16 March 2006 among the Active Advertising,
the other Grantors named therein and the Agent (the "DEBT SECURITY
AGREEMENT");
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(5) the security agreement dated 16 March 2006 among the Active Advertising,
the other Grantors named therein and the Lender (the "EQUITY SECURITY
AGREEMENT");
(6) the share mortgage dated 16 March 2006 made by Upper Will Enterprises
Limited ("UPPER WILL") as mortgagor in favour of the Agent (the "UPPER WILL
DEBT MORTGAGE") of shares in the capital of Active Advertising;
(7) the share mortgage dated 16 March 2006 made by Upper Will as mortgagor in
favour of the Lender (the "UPPER WILL EQUITY MORTGAGE") of shares in the
capital of Active Advertising;
(8) a Share Mortgage dated 16 March 2006 made by XFM as a mortgagor in favour
of the Lender (the "XFM EQUITY MORTGAGE") of shares in EconWorld; and
(9) a Share Mortgage dated 16 March 2006 made by XFM as a mortgagor in favour
of the Agent (the "XFM DEBT MORTGAGE") of shares in EconWorld.
A. DOCUMENTS
For the purposes of rendering this opinion, we have reviewed and relied upon
either the originals or copies of the following documents:
1. a copy of the executed Credit Agreement;
2. a copy of the executed Guaranty;
3. a copy of the executed Share Purchase Agreement;
4. a copy of the executed Debt Security Agreement;
5. a copy of the executed Equity Security Agreement;
6. a copy of the executed Upper Will Debt Mortgage;
7. a copy of the executed Upper Will Equity Mortgage;
8. a copy of the executed XFM Debt Mortgage;
9. a copy of the executed XFM Equity Mortgage;
10. a copy of the certificate of incorporation of each of the Companies;
11. a copy of the memorandum and articles of association of each of the
Companies;
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12. copies of the registers of directors and members of each of the Companies;
13. a copy of the resolutions of the directors of Active Advertising approving
the form, contents and execution of the Credit Agreement and the Guaranty
(the "RESOLUTIONS");
14. results of a company search conducted at the Hong Kong Companies Registry
in respect of each of the Companies on 16 March 2006;
15. the results of a compulsory winding-up search conducted at the Hong Kong
Official Receiver's Office in respect of each of the Companies on 16 March
2006;
Items 1 to 13 above are collectively referred to as the "DOCUMENTS". Items 1 to
5 above are collectively referred to as the "TRANSACTION DOCUMENTS"; Items 6 to
9 above shall be collectively referred to as the "SECURITY DOCUMENTS". We have
relied exclusively upon the above documents without independent investigation
for the purposes of providing our opinions expressed below.
B. FACTS AND ASSUMPTIONS
For the purposes of rendering this opinion we have assumed without further
enquiry:
1. each party to the Documents (except the Companies) has the capacity, power
and authority to enter into and to exercise its rights and to perform its
obligations under the Documents to which it is a party;
2. all signatures, stamps and seals are genuine, all original Documents are
authentic and all copy Documents are complete and conform to the originals;
3. the conformity with the originals of all Documents submitted to us as
copies and the authenticity of such originals;
4. all Documents have been signed and sealed where indicated;
5. the genuineness of all signatures and seals;
6. all facts and information stated or given in the Documents are true and
correct through the date of the Documents;
7. the accuracy and completeness of all corporate minutes, resolutions and
records which we have reviewed and that the same remain in full force and
effect and unamended through the date of the Documents;
8. there have been no amendments to the memorandum and/or articles of
association of either of the Companies;
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9. the resolutions passed under the Resolutions were duly passed at a properly
convened meeting of duly appointed directors of the Companies and have not
been amended or rescinded and are in full force and effect;
10. there has been no alteration in the status or condition of the Companies as
disclosed by the searches referred to in Section A above; and
11. in respect of any Credit Party (as defined in the Credit Agreement) to any
of the Transaction Documents save for the Companies (each, an "OFFSHORE
COMPANY"):
(a) the Offshore Company is incorporated and validly existing in a
jurisdiction other than Hong Kong;
(b) the Offshore Company is not registered to carry on and does not carry
on any business in Hong Kong;
(c) the Offshore Company does not have a place of business or permanent
establishment in Hong Kong;
(d) the execution of the Transaction Documents by an Offshore Company has
been duly authorized and executed under the laws of its jurisdictions
of incorporation and existence;
(e) the Offshore Company has authorized a signatory in Hong Kong to
execute the Transaction Documents;
(f) the Offshore Company retains an agent in the Cayman Islands (in
respect of XFM) or the British Virgin Islands (in respect of Ming
Shing, Upper Will and Upper Step) each of which has an office in Hong
Kong to maintain a duplicate register of members and other corporate
documents in Hong Kong; and
(g) aside from the matters set out in sections 11(a)-(f) above, the
Offshore Company have no nexus to Hong Kong.
C. OPINIONS
Based on the above and subject to the qualifications expressed below, we are of
the following opinion on the basis of Hong Kong laws as they exist on the date
hereof that:
1. THE COMPANIES ARE EACH COMPANIES DULY INCORPORATED AND VALIDLY EXISTING IN
HONG KONG AND HAS THE CAPACITY AND POWER TO ENTER INTO THE TRANSACTION
DOCUMENTS TO WHICH THEY ARE A PARTY AND EXERCISE THEIR RESPECTIVE RIGHTS
AND PERFORM THEIR RESPECTIVE OBLIGATIONS UNDER THE SAME.
2. ALL CORPORATE ACTION REQUIRED TO AUTHORISE THE EXECUTION BY THE COMPANIES
OF THE TRANSACTION DOCUMENTS TO WHICH THEY ARE A PARTY AND THE EXERCISE BY
THEM OF
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THEIR RIGHTS AND THE PERFORMANCE BY IT OF ITS OBLIGATIONS UNDER THE
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY HAVE BEEN DULY TAKEN.
3. THE RESPECTIVE OBLIGATIONS EXPRESSED TO BE ASSUMED BY THE COMPANIES IN THE
TRANSACTION DOCUMENTS TO WHICH THEY ARE A PARTY CONSTITUTE THE LEGAL,
VALID, BINDING OBLIGATIONS OF THE COMPANIES ENFORCEABLE IN ACCORDANCE WITH
THEIR TERMS UNDER THE LAWS OF HONG KONG.
4. No further acts, conditions or things (including any consents or approvals
by any governmental authority of Hong Kong) are required under the laws of
Hong Kong to be done, fulfilled or performed in connection with the
execution, delivery, performance or enforcement of the Security Documents.
5. The execution, delivery and performance by the Companies of the Transaction
Documents to which they are a party will not contravene (i) their
respective certificates of incorporation or memorandum and articles of
association; or (ii) any law, regulation, ordinance, decree, public policy
or authorisation to which each Company is subject in Hong Kong.
6. It is not necessary under the laws of Hong Kong in order to ensure the
validity, effectiveness and enforceability of the Security Documents that
they be filed, registered or recorded in any public or other office or
register.
7. The choice of New York law as the governing law of the Transaction
Documents is a valid choice of law and would be recognised and given effect
to in any action brought before a court of competent jurisdiction in Hong
Kong.
8. There are no judgments, legal or governmental proceedings or petitions to
wind up either of the Companies pending in the Hong Kong Official
Receiver's Office to which the Companies are subject.
9. Each Transaction Document to which the Companies are a party has been duly
executed and delivered by such Company.
10. Each Transaction Document to which any of the Offshore Companies are a
party have been duly executed under the laws of Hong Kong to the extent, if
any, that Hong Kong laws apply to determine the due execution of them.
D. QUALIFICATIONS
The opinions expressed above are subject to the following qualifications:
1. the opinions given in this opinion relate only to Hong Kong laws as applied
by the Hong Kong courts as at the date of this letter. We express no
opinion on the laws of any other jurisdiction;
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2. the enforceability of the documents may be limited by bankruptcy,
winding-up, insolvency, arrangement, fraudulent preference and conveyance,
assignment and preference and other similar laws of general application
affecting the enforcement of creditor's rights;
3. a court may exercise discretion in the granting of equitable remedies such
as specific performance and injunction;
4. the enforceability of the documents may be limited by general principles of
law and equity relating to the conduct of the respective parties prior to
execution of or in the administration or performance of the documents,
including, without limitation, (i) undue influence, unconscionability,
duress, misrepresentation and deceit, (ii) estoppel and waiver, (iii)
laches, and (iv) reasonableness and good faith in the exercise of
discretionary powers;
5. a court may decline to accept the factual and legal determinations of a
party notwithstanding that a contract or instrument provides that the
determinations of that party shall be conclusive;
6. we express no opinion as to the enforceability of any provision of a
document that is inconsistent with any provision of any other document
except, where that inconsistency is addressed by a paramountcy clause, the
paramountcy clause would be enforceable;
7. in this opinion "ENFORCEABLE" means that an obligation is of a type which
the Hong Kong courts enforce. It does not mean that those obligations will
be enforced in all circumstances in accordance with the terms of the
relevant document. In particular:
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(A) THE POWER OF A HONG KONG COURT TO ORDER SPECIFIC PERFORMANCE OF AN
OBLIGATION OR OTHER EQUITABLE REMEDY IS DISCRETIONARY AND ACCORDINGLY
A HONG KONG COURT MIGHT MAKE AN AWARD OF DAMAGES WHERE SPECIFIC
PERFORMANCE OF AN OBLIGATION OR OTHER EQUITABLE REMEDY IS SOUGHT;
(B) WHERE ANY PARTY TO THE DOCUMENTS IS VESTED WITH A DISCRETION OR MAY
DETERMINE A MATTER IN ITS OPINION, THAT PARTY MAY BE REQUIRED TO
EXERCISE ITS DISCRETION IN GOOD FAITH, REASONABLY AND FOR A PROPER
PURPOSE, AND TO FORM ITS OPINION IN GOOD FAITH AND ON REASONABLE
GROUNDS;
(C) ENFORCEMENT MAY BE LIMITED BY THE PROVISIONS OF HONG KONG LAW
APPLICABLE TO AGREEMENTS HELD TO HAVE BEEN FRUSTRATED BY EVENTS
HAPPENING AFTER THEIR EXECUTION;
(D) CLAIMS MAY BECOME BARRED UNDER THE LIMITATION ORDINANCE (CAP.347) OR
MAY BE OR BECOME SUBJECT TO A DEFENCE OF SET-OFF OR COUNTERCLAIM;
(E) A HONG KONG COURT MAY STAY PROCEEDINGS IF CONCURRENT PROCEEDINGS ARE
BEING BROUGHT ELSEWHERE AND MAY DECLINE TO ACCEPT JURISDICTION IN
CERTAIN CASES;
(F) A PARTY TO A CONTRACT MAY BE ABLE TO AVOID ITS OBLIGATIONS UNDER THAT
CONTRACT (AND MAY HAVE OTHER REMEDIES) WHERE IT HAS BEEN INDUCED TO
ENTER INTO THAT CONTRACT BY A MISREPRESENTATION AND HONG KONG COURTS
WILL GENERALLY NOT ENFORCE AN OBLIGATION IF THERE HAS BEEN FRAUD;
(G) WHILST AN ENGLISH OR A HONG KONG COURT HAS POWER TO GIVE JUDGMENT IN A
CURRENCY OTHER THAN POUNDS STERLING OR, AS THE CASE MAY BE, HONG KONG
DOLLARS, IT HAS THE DISCRETION TO DECLINE TO DO SO; AND
(H) ANY PROVISIONS PROVIDING THAT ANY CALCULATION, DETERMINATION OR
CERTIFICATION IS TO BE CONCLUSIVE AND BINDING MAY NOT BE EFFECTIVE IF
SUCH CALCULATION, DETERMINATION OR CERTIFICATION IS FRAUDULENT OR
MANIFESTLY
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INCORRECT AND AN ENGLISH OR A HONG KONG COURT MAY REGARD ANY
CERTIFICATION, DETERMINATION OR CALCULATION AS NO MORE THAN PRIMA
FACIE EVIDENCE.
8. The parties to a document may be able to amend that document by oral
agreement despite any provision to the contrary.
E. GENERAL
This opinion is provided in connection with the satisfaction of conditions
precedent under the Credit Agreement and is addressed to you only. It may not,
without our prior written consent, be relied on for any other purpose or by any
other person or be delivered or disclosed to or relied upon by any other person.
Yours faithfully
PRESTON GATES & ELLIS
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AMENDMENT NO. 1
AMENDMENT NO. 1, dated as of March 16, 2006 (this "Amendment"), to the
Stock Purchase Agreement, dated as of March 16, 2006 ("Stock Purchase
Agreement"), by and between XINHUA FINANCE MEDIA LIMITED (the "Company") and
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC (the "Purchaser").
WITNESSETH:
WHEREAS, the Company and the Purchaser have agreed to amend the provisions
of the Stock Purchase Agreement to delete all references to the Fee.
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter contained, the parties hereto agree as follows:
Defined Terms. Capitalized terms used herein but not defined herein have
the respective meanings ascribed thereto in the Stock Purchase Agreement.
Amendments.
Section 1. The definition of "Fee" is hereby deleted in its entirety.
Section 3(b). The first sentence of Section 3(b) shall be amended by
deleting the words ", reduced by the amount of the Fee payable in connection
with such Closing".
Section 7(a)(x). Clause (x) of Section 7(a) is hereby deleted in its
entirety.
Effectiveness. This Amendment shall become effective as of the date first
written above upon the occurrence of the Initial Closing Date.
Miscellaneous.
Except as expressly provided herein, the Stock Purchase Agreement shall
continue in full force and effect, and the terms and conditions of the Stock
Purchase Agreement are expressly incorporated herein and ratified and confirmed
in all respects.
The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Purchaser under the Equity Documents.
This Amendment may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement and any party may
enter into this Amendment by executing a counterpart. Transmission by facsimile
of an executed counterpart of this Amendment shall be deemed to constitute due
and sufficient delivery of such counterpart.
This Amendment shall be governed by, and construed in accordance with, the
laws of the State of New York.
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The terms of this Amendment shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
[Remainder of page intentionally left blank; signatures follow on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
COMPANY:
XINHUA FINANCE MEDIA LIMITED
By: /s/
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
1
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PURCHASER:
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC
By: /s/
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2