EXHIBIT 4.4
▇▇▇▇▇.▇▇▇ INTERNATIONAL, LTD.
A CAYMAN ISLANDS COMPANY
SHAREHOLDERS AGREEMENT
EXHIBIT 4.4
TABLE OF CONTENTS
Page
1. INFORMATION RIGHTS; BOARD REPRESENTATION................................................ 1
1.1 Information and Inspection Rights.............................................. 1
1.2 Board Representation; Observer................................................. 2
2. REGISTRATION RIGHTS..................................................................... 3
2.1 Applicability of Rights........................................................ 3
2.2 Definitions.................................................................... 3
2.3 Demand Registration............................................................ 5
2.4 Piggyback Registrations........................................................ 7
2.5 Form S-3 or Form F-3 Registration.............................................. 9
2.6 Obligations of the Company..................................................... 10
2.7 Furnish Information............................................................ 12
2.8 Delay of Registration.......................................................... 12
2.9 Indemnification................................................................ 12
2.10 Reports Under the 1934 Act..................................................... 15
2.11 Market Stand-Off............................................................... 15
2.12 Termination of the Company's Obligations....................................... 16
2.13 No Registration Rights to Third Parties........................................ 16
3. RIGHT OF PARTICIPATION.................................................................. 17
3.1 General........................................................................ 17
3.2 Pro Rata Share................................................................. 17
3.3 New Securities................................................................. 17
3.4 Procedures..................................................................... 18
3.5 Failure to Exercise............................................................ 19
3.6 Termination.................................................................... 19
4. TRANSFER RESTRICTIONS................................................................... 19
4.1 Certain Definition............................................................. 19
4.2 Sale by Founder or Major Shareholder; Notice of Sale........................... 20
4.3 Right of First Refusal......................................................... 20
4.4 Co-Sale Right.................................................................. 22
4.5 Exempt Transfers............................................................... 24
4.6 Prohibited Transfers........................................................... 24
4.7 Legend......................................................................... 25
4.8 Assignment and Amendment of Rights............................................. 26
4.9 Term........................................................................... 26
5. ASSIGNMENT AND AMENDMENT................................................................ 27
5.1 Assignment..................................................................... 27
5.2 Amendment of Rights............................................................ 27
6. CONFIDENTIALITY AND NON-DISCLOSURE...................................................... 28
6.1 Disclosure of Terms............................................................ 28
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Page
6.2 Press Releases, Etc............................................................ 28
6.3 Permitted Disclosures.......................................................... 28
6.4 Legally Compelled Disclosure................................................... 28
6.5 Other Information.............................................................. 29
6.6 Notices........................................................................ 29
7. PROTECTIVE PROVISIONS................................................................... 29
7.1 Acts of the Company............................................................ 29
8. GENERAL PROVISIONS...................................................................... 31
8.1 Notices........................................................................ 31
8.2 Tax............................................................................ 31
8.3 Preservation of Existence...................................................... 32
8.4 Fundamental Changes............................................................ 32
8.5 Entire Agreement............................................................... 32
8.6 Governing Law; Jurisdiction.................................................... 32
8.7 Severability................................................................... 33
8.8 Third Parties.................................................................. 33
8.9 Successors and Assigns......................................................... 33
8.10 Interpretation; Captions....................................................... 33
8.11 Counterparts................................................................... 33
8.12 Adjustments for Share Splits, Etc.............................................. 33
8.13 Aggregation of Shares.......................................................... 33
EXHIBIT A Schedule of Series A Investors ................................................ Exhibit A-1
EXHIBIT B Schedule of Series B Investors................................................. Exhibit B-1
EXHIBIT C Schedule of Series C Investors................................................. Exhibit C-1
EXHIBIT D Schedule of the Founders....................................................... Exhibit D-1
EXHIBIT E Schedule of Modern Express Shareholders........................................ Exhibit E-1
EXHIBIT F Particulars of the Company, the HK Subsidiary, Ctrip
Computer Technology and Ctrip Shanghai ........................................ Exhibit F-1
EXHIBIT G Notices........................................................................ Exhibit G-1
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SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (the "AGREEMENT") is made and entered into
as of September 4, 2003, by and among ▇▇▇▇▇.▇▇▇ INTERNATIONAL, LTD., a Cayman
Islands company (the "COMPANY"), ▇▇▇▇▇.▇▇▇ (Hong Kong) Limited, a company
organized under the laws of the Hong Kong Special Administrative Region of the
People's Republic of China (the "HK SUBSIDIARY"), Ctrip Computer Technology
(Shanghai) Limited, a wholly foreign-owned enterprise established under the laws
of the People's Republic of China ("CTRIP COMPUTER TECHNOLOGY"), Ctrip Travel
Information Technology (Shanghai) Limited, a wholly foreign-owned enterprise
established under the laws of the People's Republic of China ("CTRIP SHANGHAI"
and together with the Company, the HK Subsidiary and the Ctrip Computer
Technology, the "GROUP COMPANIES" and each a "GROUP COMPANY"), THE HOLDERS OF
SERIES A PREFERRED SHARES ("SERIES A SHARES") listed on Exhibit A hereto (each a
"SERIES A INVESTOR" and collectively, "SERIES A INVESTORS"), THE HOLDERS OF
SERIES B PREFERRED SHARES ("SERIES B SHARES") listed on Exhibit B hereto (each a
"SERIES B INVESTOR" and collectively, "SERIES B INVESTORS"), THE HOLDERS OF
SERIES C PREFERRED SHARES listed on Exhibit C hereto (each a "SERIES C INVESTOR"
and collectively, "SERIES C INVESTORS", and together with the Series A Investors
and Series B Investors, the "INVESTORS"), the individuals listed on Exhibit D
hereto (each a "FOUNDER" and collectively the "FOUNDERS") the individuals listed
on Exhibit E hereto (each a "MODERN EXPRESS SHAREHOLDER"), and collectively, the
"MODERN EXPRESS SHAREHOLDERS" and IDG Technology Venture Investment, Inc.
RECITALS
WHEREAS, each of the Company, the HK Subsidiary, the Ctrip Computer
Technology and Ctrip Shanghai is a company limited by shares, the particulars of
which are set out in Exhibit F;
WHEREAS, the Company and the Series C Investors are parties to that
certain Series C Preferred Shares Purchase Agreement dated August 27, 2003 (the
"SERIES C PURCHASE AGREEMENT") under which the Series C Investors' and the
Company's obligations are conditioned upon execution and delivery of this
Agreement by the Series C Investors immediately prior to the Closing Date under
the Series C Purchase Agreement; and
NOW, THEREFORE, in consideration of the foregoing premises, mutual
promises and covenants contained herein, the parties agree as follows:
1. INFORMATION RIGHTS; BOARD REPRESENTATION
1.1 Information and Inspection Rights
The Company covenants and agrees that, commencing on the date of this
Agreement, for so long as a shareholder holds 5% of (i) the outstanding Ordinary
Shares of the Company or (ii) any of the Company's Series A, Series B or Series
C Preferred Shares ("SERIES C SHARES", and together with the Series A Shares and
the Series B Shares, the "PREFERRED SHARES"), the Company will deliver to such
shareholder:
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(a) audited annual consolidated financial statements, including balance
sheet, income statement and statement of cash flow, within ninety (90) days
after the end of each fiscal year, audited by a "Big 4" accounting firm of the
Company's choice;
(b) unaudited quarterly financial consolidated statement within
forty-five (45) days after the end of each of the first three quarters;
(c) unaudited monthly consolidated financial statements, including
balance sheet, income statement and statement of cash flow, within twenty-one
(21) days of the end of each month;
(d) an annual consolidated budget for the following fiscal year within
thirty (30) days after the end of each fiscal year; and
(e) upon the written request by the shareholder, such other information
as the shareholder shall reasonably request.
All financial statements to be provided to the Shareholders pursuant to
this Section 1.1 shall be in reasonable detail and prepared in conformance with
U.S. Generally Accepted Accounting Principles or Hong Kong Generally Accepted
Accounting Principles.
Each of the Group Companies further covenant and agree that, commencing
on the date of this Agreement, for so long as a shareholder holds 5% of any of
the Series A Shares, Series B Shares or Series C Shares, such shareholder shall
have standard inspection rights of the facilities, records and books of the any
of the Group Companies, including, without limitation, the right to discuss the
business, operations and conditions of such Group Company with its directors,
officers, accounts, legal counsel and investment bankers, provided that any such
inspection will be conducted in such a manner as shall not unduly interfere with
the Group Company's normal course of business.
These information and inspection rights shall terminate upon the
consummation of an underwritten public offering of the Ordinary Shares of the
Company in the United States, that has been registered under the Securities Act
of 1933, as amended (the "SECURITIES ACT"), with the gross proceeds in excess of
US$25,000,000, or in a similar public offering of the Ordinary Shares of the
Company in a jurisdiction and on a recognized securities exchange or automated
trading system outside of the United States, provided that such public offering
is reasonably equivalent to the aforementioned public offering in the United
States in terms of price, offering proceeds and regulatory approval (a
"QUALIFIED IPO").
1.2 Board Representation; Observer
(a) Upon the Closing (as defined in the Series C Purchase Agreement) the
Company's Board of Directors (the "BOARD") shall be constituted in the manner
set forth herein. Upon the Closing, the Company's Amended and Restated
Memorandum and Articles of Association (the "MEMORANDUM AND ARTICLES") shall
provide that the Board shall consist of eight (8) members (excluding independent
Directors), which number of members shall not be changed except pursuant to an
amendment to the Amended and Restated Memorandum and Articles.
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(i) Carlyle Asia Venture Partners I, L.P. and CIPA
Co-Investments, L.P. (together with Carlyle Asia Venture Partners I, "CARLYLE")
shall be entitled to elect two (2) Directors to the Board;
(ii) Each of the three (3) largest holders of Series A Shares,
Series B Shares and Ordinary Shares (excluding Carlyle and the Founders and
calculated on an as-converted basis) shall be entitled to one (1) Director; and
(iii) The Founders shall be entitled to elect three (3)
Directors.
Two (2) independent Directors shall be nominated by holders of a
majority of the Ordinary Shares and Preferred Shares (calculated on an
as-converted basis). Any Director may only be removed or replaced by the party
who elected such Director.
(b) For as long as a shareholder not otherwise represented on the Board
holds at least 20% of the Shares it originally purchased from the Company and
such holding constitutes at least 3% of the then outstanding Ordinary Shares of
the Company (on a fully diluted and as-converted basis), such shareholder shall
be entitled to appoint one (1) observer to attend all meetings of the Board
(whether in person, telephonic or otherwise) in a non-voting, observer capacity;
provided, however, such observer may be excluded from all or any portion of a
meeting where their presence could reasonably result in (1) the disclosure of
trade secrets to a competitor or (2) the loss of attorney-client privilege. Each
observer shall enter into a legally enforceable confidentiality agreement with
the Company prior to exercising observation rights.
2. REGISTRATION RIGHTS
2.1 Applicability of Rights
The holders of Preferred Shares shall be entitled to the following
rights with respect to any public offering of the Company's Ordinary Shares in
the United States and shall be entitled to reasonably analogous or equivalent
rights with respect to any other offering of shares in any other jurisdiction
pursuant to which the Company undertakes to publicly offer or list such
securities for trading on a recognized securities exchange.
2.2 Definitions
For purposes of this Section 2:
(a) Form S-3 and Form F-3
The terms "FORM S-3" and "FORM F-3" means such respective form
under the Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
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(b) Holder
For purposes of this Section 2, the term "HOLDER" means any
person owning of record Registrable Securities that have not been sold to the
public or pursuant to Rule 144 promulgated under the Securities Act ("RULE
144"), or any permitted assignee of record of such Registrable Securities to
whom rights under this Section 2 have been duly assigned in accordance with this
Agreement.
(c) Initial Offering
The term "INITIAL OFFERING" means the Company's first firm
commitment underwritten public offering of its Ordinary Shares where the shares
are subsequently primarily traded on the Nasdaq Stock Market's National Market
or the New York Stock Exchange or another comparable exchange or marketplace
approved by the Board.
(d) Registrable Securities
The term "REGISTRABLE SECURITIES" means: (i) any Ordinary Shares
of the Company issued or to be issued pursuant to conversion of any Preferred
Shares, (ii) any Ordinary Shares of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, any Preferred Shares described in clause (i) of this subsection
(d), and (iii) any other Ordinary Shares of the Company owned or hereafter
acquired by any holder of Preferred Shares. Notwithstanding the foregoing,
"REGISTRABLE SECURITIES" shall exclude any Registrable Securities sold by a
person in a transaction in which rights under this Section 2 are not assigned in
accordance with this Agreement or any Registrable Securities sold in a public
offering, whether sold pursuant to Rule 144, in a registered offering or
otherwise.
(e) Registrable Securities Then Outstanding
The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall mean the number of Ordinary Shares of the Company that are,
and the number of Ordinary Shares of the Company issuable pursuant to then
exercisable or convertible securities that are, Registrable Securities and are
then issued and outstanding.
(f) Registration
The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(g) SEC
The term "SEC" or "COMMISSION" means the U.S. Securities and
Exchange Commission.
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2.3 Demand Registration
(a) Request by Holders
If the Company shall at any time after the Initial Offering
receive a written request from the Holders of at least fifty percent (50%) of
the Registrable Securities then outstanding (the "INITIATING HOLDERS") that the
Company file a registration statement under the Securities Act covering the
registration of Registrable Securities pursuant to this Section 2.3, then the
Company shall, within ten (10) business days of the receipt of such written
request, give written notice of such request ("REQUEST NOTICE") to all Holders,
and use its best efforts to effect, as soon as practicable, the registration
under the Securities Act of all Registrable Securities that the Holders request
to be registered and included in such registration by written notice given by
such Holders to the Company within twenty (20) days after receipt of the Request
Notice, subject only to the limitations of this Section 2.3; provided that the
Registrable Securities requested by all Holders to be registered pursuant to
such request must be at least fifteen percent (15%) of all Registrable
Securities then outstanding; and provided further, that the Company shall not be
obligated to effect any such registration if the Company has, within the six (6)
month period preceding the date of such request, already effected a registration
under the Securities Act pursuant to this Section 2.3 or Section 2.5 or in which
the Holders had an opportunity to participate pursuant to the provisions of
Section 2.4, other than a registration from which the Registrable Securities of
the Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration).
(b) Underwriting
If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, then they shall
so advise the Company as a part of their request made pursuant to this Section
2.3 and the Company shall include such information in the Request Notice.
In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein.
All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the managing underwriter or underwriters selected for such underwriting by
the Holders of a majority of the Registrable Securities being registered and
reasonably acceptable to the Company (including a market stand-off agreement of
up to 180 days if required by such underwriter or underwriters).
Notwithstanding any other provision of this Section 2.3, if the
underwriter(s) advise(s) the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten (including Registrable
Securities), then the Company shall so advise all Holders of Registrable
Securities which would otherwise be registered and underwritten pursuant hereto,
and the number of Registrable Securities that may be included in the
underwriting shall be reduced as required by the underwriter(s) and allocated
among the Holders of Registrable Securities on a pro rata basis according to the
number of Registrable Securities then outstanding held by each Holder requesting
registration (including the Initiating Holders); provided, however, that the
number of shares of Registrable Securities to be included in such underwriting
and registration shall not be reduced unless all other securities are first
entirely excluded from the underwriting and registration including, without
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limitation, all shares that are not Registrable Securities and are held by any
other person, including, without limitation, any person who is an employee,
officer or director of the Company or any direct or indirect subsidiary of the
Company; provided further, that at least thirty percent (30%) of shares of
Registrable Securities requested by the Holders to be included in such
underwriting and registration shall be so included. For purposes of the
preceding sentence concerning apportionment, for any selling shareholder that is
a Holder of Registrable Securities and that is a venture capital fund,
partnership, limited liability company or corporation, the affiliated venture
capital funds, partners, retired partners, members, retired members and
shareholders of such Holder, or the estates and family members of any such
partners, retired partners, members or retired members and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "Holder,"
and any pro rata reduction with respect to such "Holder" shall be based upon the
aggregate amount of Registrable Securities owned by all such related entities
and individuals.
If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to the Company and
the underwriter(s), delivered at least ten (10) business days prior to the
effective date of the registration statement.
Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration.
(c) Maximum Number of Demand Registrations
The Company shall be obligated to effect only three (3) such
registrations pursuant to this Section 2.3.
(d) Deferral
Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting the filing of a registration statement pursuant to this
Section 2.3, a certificate signed by the President or Chief Executive Officer of
the Company stating that in the good faith judgment of the Board, it would be
materially detrimental to the Company and its shareholders for such registration
statement to be filed, then the Company shall have the right to defer such
filing for a period of not more than ninety (90) days after receipt of the
request of the initiating Holders; provided, however, that the Company may not
utilize this right more than once in any twelve (12) month period and provided
further that the Company shall not register any securities for the account of
itself or any other shareholder during such ninety (90) day period (other than a
registration relating solely to any employee benefit plan or a corporate
reorganization).
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(e) Expenses
All expenses incurred in connection with any registration
pursuant to this Section 2.3, including without limitation all U.S. federal,
"blue sky" and all foreign registration, filing and qualification fees,
printer's and accounting fees, and fees and disbursements of counsel for the
Company and the reasonable fees and disbursements of one counsel for the Holders
participating in such registration (but excluding underwriters' discounts and
commissions relating to shares sold by the Holders), shall be borne by the
Company.
Each Holder participating in a registration pursuant to this
Section 2.3 shall bear such Holder's proportionate share (based on the total
number of shares sold in such registration other than for the account of the
Company) of all discounts, and commissions or other amounts payable to
underwriter(s) or brokers, in connection with such offering by the Holders.
Notwithstanding the foregoing, the Company shall not be required
to pay for any expenses of any registration proceeding begun pursuant to this
Section 2.3 if the registration request is subsequently withdrawn at the request
of the Holders of a majority of the Registrable Securities to be registered,
unless the Holders of a majority of the Registrable Securities then outstanding
agree that such registration constitutes the use by the Holders of one (1)
demand registration pursuant to this Section 2.3 (in which case such
registration shall also constitute the use by all Holders of Registrable
Securities of one (1) such demand registration); provided, however, that if at
the time of such withdrawal, the Holders have learned of a material adverse
change in the condition, business, or prospects of the Company not known to the
Holders at the time of their request for such registration and have withdrawn
their request for registration with reasonable promptness after learning of such
material adverse change, then the Holders shall not be required to pay any of
such expenses and such registration shall not constitute the use of a demand
registration pursuant to this Section 2.3.
2.4 Piggyback Registrations
(a) The Company shall notify all Holders of Registrable Securities in
writing at least twenty (20) days prior to filing any registration statement
under the Securities Act for purposes of effecting a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating solely to any employee benefit plan
or a corporate reorganization) and will afford each such Holder an opportunity
to include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by
such Holder shall within ten (10) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. If a Holder decides not to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
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(b) Underwriting
If a registration statement under which the Company gives notice
under this Section 2.4 is for an underwritten offering, then the Company shall
so advise the Holders of Registrable Securities.
In such event, the right of any such Holder's Registrable
Securities to be included in a registration pursuant to this Section 2.4 shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the managing underwriter or underwriters selected for
such underwriting (including a market stand-off agreement of up to 180 days if
required by such underwriter or underwriters).
Notwithstanding any other provision of this Agreement, if the
managing underwriter(s) determine(s) in good faith that marketing factors
require a limitation of the number of shares to be underwritten (including
Registrable Securities), then the managing underwriter(s) may exclude shares
from the registration and the underwriting, and the number of shares that may be
included in the registration and the underwriting shall be allocated, first, to
the Company, and second, to each of the Holders requesting inclusion of their
Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder;
provided, however, that the right of the underwriter(s) to exclude shares
(including Registrable Securities) from the registration and underwriting as
described above shall be restricted so that (i) the number of Registrable
Securities included in any such registration is not reduced below thirty percent
(30%) of the aggregate number of Registrable Securities for which inclusion has
been requested; and (ii) all shares that are not Registrable Securities and are
held by any other person, including, without limitation, any person who is an
employee, officer or director of the Company (or any direct or indirect
subsidiary of the Company) shall first be excluded from such registration and
underwriting before any Registrable Securities are so excluded. For purposes of
the preceding sentence concerning apportionment, for any selling shareholder
that is a Holder of Registrable Securities and that is a venture capital fund,
partnership, limited liability company or corporation, the affiliated venture
capital funds, partners, retired partners, members, retired members and
shareholders of such Holder, or the estates and family members of any such
partners, retired partners, members or retired members and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "Holder,"
and any pro rata reduction with respect to such "Holder" shall be based upon the
aggregate amount of Registrable Securities owned by all such related entities
and individuals.
If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to the Company and
the underwriter(s), delivered at least ten (10) business days prior to the
effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration.
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(c) Expenses
All expenses incurred in connection with a registration pursuant
to this Section 2.4 (excluding underwriters' and brokers' discounts and
commissions relating to shares sold by the Holders), including, without
limitation all U.S. federal, "blue sky" and all foreign registration, filing and
qualification fees, printers' and accounting fees, and fees and disbursements of
counsel for the Company and reasonable fees and disbursements of one counsel for
the Holders, shall be borne by the Company.
(d) Not Demand Registration
Registration pursuant to this Section 2.4 shall not be deemed to
be a demand registration as described in Section 2.3 above.
Except as otherwise provided herein, there shall be no limit on
the number of times the Holders may request registration of Registrable
Securities under this Section 2.4.
2.5 Form S-3 or Form F-3 Registration
In case the Company shall at any time after the first anniversary of the
date hereof receive from any Holder or Holders of a majority of all Registrable
Securities then outstanding a written request or requests that the Company
effect a registration on Form S-3 or Form F-3 (or an equivalent registration in
a jurisdiction outside of the United States) and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, then the Company will:
(a) Notice
Promptly give written notice of the proposed registration and
the Holder's or Holders' request therefor, and any related qualification or
compliance, to all other Holders of Registrable Securities; and
(b) Registration
As soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holders or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
twenty (20) days after the Company provides the notice contemplated by Section
2.5(a); provided, however, that the Company shall not be obligated to effect any
such registration, qualification or compliance pursuant to this Section 2.5:
(i) if Form S-3 or Form F-3 is not available for such offering
by the Holders;
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than US$5,000,000;
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(iii) if the Company shall furnish to the Holders a certificate
signed by the President or Chief Executive Officer of the Company stating that
in the good faith judgment of the Board, it would be materially detrimental to
the Company and its shareholders for such Form S-3 or Form F-3 Registration (or
equivalent registration in a jurisdiction outside of the United States) to be
effected at such time, in which event the Company shall have the right to defer
the filing of the Form S-3 or Form F-3 registration statement (or equivalent
registration statement in a jurisdiction outside of the United States) no more
than once during any twelve (12) month period for a period of not more than
ninety (90) days after receipt of the request of the Holder or Holders under
this Section 2.5 and provided further that the Company shall not register any
securities for the account of itself or any other shareholder during such ninety
(90) day period (other than a registration relating solely to any employee
benefit plan or a corporate reorganization);
(iv) if the Company has, within the six (6) month period
preceding the date of such request, already effected a registration under the
Securities Act other than a registration from which the Registrable Securities
of Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration);
or
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
(c) Expenses
The Company shall pay all expenses incurred in connection with
each registration requested pursuant to this Section 2.5, (excluding
underwriters' or brokers' discounts and commissions relating to shares sold by
the Holders), including without limitation all U.S. federal, "blue sky" and all
foreign registration, filing and qualification fees, printers' and accounting
fees, and fees and disbursements of counsel for the Company and reasonable fees
and disbursements of one counsel for the Holders.
(d) Not Demand Registration
Form S-3 or Form F-3 registrations (or equivalent registrations
outside of the United States) shall not be deemed to be demand registrations as
described in Section 2.3 above. Except as otherwise provided herein, there shall
be no limit on the number of times the Holders may request registration of
Registrable Securities under this Section 2.5.
2.6 Obligations of the Company
Whenever required to effect the registration of any Registrable
Securities under this Agreement the Company shall, as expeditiously as
reasonably possible:
(a) Registration Statement
Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to ninety (90) days or, if
earlier, until the distribution contemplated in such registration statement has
10
been completed, provided, however, that the Company shall not be required to
keep any such registration statement effective for more than ninety (90) days.
(b) Amendments and Supplements
Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement until the earlier of (i) the date on which all
Registrable Securities covered by such registration have been sold and (ii) 90
days after the effective date of the registration statement.
(c) Prospectuses
Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by them that
are included in such registration.
(d) Blue Sky
Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) Underwriting
In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notification
Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Opinion and Comfort Letter
Furnish, at the request of any Holder requesting registration of
Registrable Securities, on the date that such Registrable Securities are
delivered to the underwriter(s) for sale, if such securities are being sold
through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
11
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a "comfort"
letter dated as of such date, from the independent certified public accountants
of the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering
and reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
(h) Exchange or Marketplace. Cause all such Registrable Securities
registered pursuant to this Section 2 to be listed on the Nasdaq Stock Market's
National Market or the New York Stock Exchange or another comparable exchange or
marketplace approved by the Board, and on each securities exchange and trading
system on which similar securities issued by the Company are then listed; and
(i) Transfer Agent. Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
2.7 Furnish Information
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to Sections 2.3, 2.4 or 2.5 that the selling Holders
shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to timely effect the Registration of their
Registrable Securities.
2.8 Delay of Registration.
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
2.9 Indemnification
In the event any Registrable Securities are included in a registration
statement under Sections 2.3, 2.4 or 2.5:
(a) By the Company
To the extent permitted by law; the Company will indemnify and
hold harmless each Holder, its partners, members, officers, directors, legal
counsel, any underwriter (as determined in the Securities Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as amended
(the "1934 ACT") (each so indemnified party, a "COMPANY INDEMNIFIED PARTY"),
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the 1934 Act or other foreign,
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "VIOLATION"):
12
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading; or
(iii) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any foreign, federal or state securities law or
any rule or regulation promulgated under the Securities Act, the 1934 Act or any
foreign, federal or state securities law in connection with the offering covered
by such registration statement;
and the Company will reimburse each such Company Indemnified Party for any legal
or other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
2.9(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Holder,
underwriter or controlling person of such Holder.
(b) By Selling Holders
To the extent permitted by law, each selling Holder, severally
and not jointly, will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter and any other Holder selling securities under such
registration statement or any of such other Holder's partners, members,
directors, officers, legal counsel or any person who controls such Holder within
the meaning of the Securities Act or the 1934 Act (a "HOLDER INDEMNIFIED
PARTY"), against any losses, claims, damages or liabilities (joint or several)
to which the Holder Indemnified Party may become subject under the Securities
Act, the 1934 Act or other foreign, federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will reimburse any legal or other
expenses reasonably incurred by a Holder Indemnified Party in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
2.9(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; and provided
further, that the total amounts payable in indemnity by a Holder under this
Section 2.9(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
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(c) Notice
Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to an actual or potential conflict of interests between
such indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall relieve
such indemnifying party of liability to the indemnified party under this Section
2.9 to the extent the indemnifying party is prejudiced as a result thereof, but
the omission to so deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 2.9.
(d) Defect Eliminated in Final Prospectus
The foregoing indemnity agreements of the Company and Holders
are subject to the condition that, insofar as they relate to any Violation made
in a preliminary prospectus but eliminated or remedied in the amended prospectus
on file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC Rule
424(b) (the "FINAL PROSPECTUS"), such indemnity agreement shall not inure to the
benefit of any person if a copy of the Final Prospectus was timely furnished to
the indemnified party and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
(e) Contribution
In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any Holder
exercising rights under this Agreement, or any controlling person of any such
Holder, makes a claim for indemnification pursuant to this Section 2.9 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 2.9 provides for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
part of any such selling Holder or any such controlling person in circumstances
for which indemnification is provided under this Section 2.9; then, and in each
such case, the Company and such Holder will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that such Holder is responsible for the
portion represented by the percentage that the public offering price of its
Registrable Securities offered by and sold under the registration statement
bears to the public offering price of all securities offered by and sold under
such registration statement, and the Company and other selling Holders are
responsible for the remaining portion; provided, however, that, in any such
case: (A) no such Holder will be required to contribute any amount in excess of
14
the public offering price of all such Registrable Securities offered and sold by
such Holder pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
(f) Conflict
Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(g) Survival
The obligations of the Company and Holders under this Section
2.9 shall survive the completion of any offering of Registrable Securities in a
registration statement and otherwise.
2.10 Reports Under the 1934 Act
With a view to making available to the Holders the benefits of Rule 144
and any other rule or regulation of the SEC that may at any time permit a Holder
to sell securities of the Company to the public without registration or pursuant
to a registration on Form S-3 or Form F-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after the effective date of the
Initial Offering;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by the Company), the Securities Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 or Form F-3 (at
any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested to
avail any Holder of any rule or regulation of the SEC that permits the selling
of any such securities without registration or pursuant to such form.
2.11 Market Stand-Off
Each Holder, the Founders and the Modern Express Shareholders and IDG
Technology Venture Investment, Inc. hereby agrees that it will not, without the
prior written consent of the managing underwriter, during the period commencing
on the date of the final prospectus relating to the Company's Initial Offering
and ending on the date specified by the Company and the managing underwriter
(such period shall not exceed one hundred eighty (l80) days; provided, however,
in the case of a Holder of Series C Shares, such period shall not exceed three
15
hundred sixty-five (365) days in the event that the Company consummates the
Initial Offering prior to April 1, 2004; provided further; however; in the case
of a Holder of Series C Shares, such period shall not exceed one hundred eighty
(180) days in the event the Company consummates the Initial Offering on or after
April 1, 2004) (i) lend, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any Ordinary Shares or any securities convertible into
or exercisable or exchangeable for Ordinary Shares held immediately prior to the
effectiveness of the Registration Statement for such offering, or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Ordinary Shares,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Ordinary Shares or other securities, in cash or
otherwise. The foregoing provisions of this Section 2.11 shall apply only to the
Initial Offering, shall not apply to the sale of any shares to an underwriter
pursuant to an underwriting agreement, and shall only be applicable to the
Holders if all officers, directors and greater than five percent (5%)
shareholders of the Company (or any direct or indirect subsidiary of the
Company) enter into similar agreements. The underwriters in connection with the
Company's Initial Offering are intended third-party beneficiaries of this
Section 2.11 and shall have the right, power and authority to enforce the
provisions hereof as though they were a party hereto. Each Holder and each
Founder further agrees to execute such agreements as may be reasonably requested
by the underwriters in the Company's Initial Offering that are consistent with
this Section 2.11 or that are necessary to give further effect thereto. In order
to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.12 Termination of the Company's Obligations
The Company shall have no obligations pursuant to Sections 2.3, 2.4 and
2.5 with respect to any Registrable Securities proposed to be sold by a Holder
in a registration pursuant to Section 2.3, 2.4 or 2.5 (i) after seven (7) years
after the consummation of an Initial Offering, or (ii) as to any Holder, such
earlier time after the Initial Offering at which such Holder (A) can sell all
shares held by it in compliance with Rule 144(k) or (B) holds one percent (1%)
or less of the Company's outstanding Ordinary Shares and all Registrable
Securities held by such Holder (together with any affiliate of the Holder with
whom such Holder must aggregate its sales under Rule 144) can be sold in any
three (3)-month period without registration in compliance with Rule 144.
2.13 No Registration Rights to Third Parties
Without the prior written consent of the Holders of a majority in
interest of the Registrable Securities then outstanding, the Company covenants
and agrees that it shall not grant, or cause or permit to be created, for the
benefit of any person or entity any registration rights of any kind (whether
similar to the demand, "piggyback" or Form S-3 or Form F-3 registration rights
described in this Article 2, or otherwise) relating to any securities of the
Company, which are senior to, or on a parity with, those granted to the Holders
of Registrable Securities.
16
3. RIGHT OF PARTICIPATION
3.1 General
Each Investor (such Investor being hereinafter referred to as a
"PARTICIPATION RIGHTS HOLDER") shall have the right of first refusal to purchase
such Participation Rights Holder's Pro Rata Share (as defined below), of all (or
any part) of any New Securities (as defined in Section 3.3) that the Company may
from time to time issue after the date of this Agreement (the "RIGHT OF
PARTICIPATION"). A Participation Rights Holder shall be entitled to apportion
the Right of Participation hereby granted it among itself and its partners,
members and affiliates (including, in the case of a venture fund, a predecessor
or successor fund of, or entity under common investment management with such
fund) in such proportions as it deems appropriate.
3.2 Pro Rata Share
A Participation Rights Holder's "PRO RATA SHARE" for purposes of the
Right of Participation is up to that proportion of New Securities that equals
the proportion that (a) the number of Registrable Securities held by such
Participation Rights Holder bears to (b) the total number of Ordinary Shares of
the Company (and other voting securities of the Company, if any) then
outstanding immediately prior to the issuance of New Securities giving rise to
the Right of Participation (assuming full conversion and exercise of all
convertible and exercisable securities then outstanding).
3.3 New Securities
"NEW SECURITIES" shall mean any Preferred Shares, Ordinary Shares and
other voting shares of the Company, whether now authorized or not, and rights,
options or warrants to purchase such Preferred Shares, Ordinary Shares and
securities of any type whatsoever that are, or may become, convertible or
exchangeable into such Preferred Shares, Ordinary Shares or other voting shares,
provided, however, that the term "New Securities" shall not include:
(a) up to 2,725,670 shares of the Company's Ordinary Shares (and/or
options or warrants therefor) issued or reserved for issuance to employees,
officers, directors, contractors, advisors or consultants of the Company for the
primary purpose of soliciting or retaining their services pursuant to incentive
agreements or incentive plans approved by the Board (such number of Ordinary
Shares (and/or options or warrants therefor) subject to increase upon the
approval of the Board);
(b) any Preferred Shares issued under the Series C Purchase Agreement;
(c) any Ordinary Shares of the Company issued upon the conversion of any
Preferred Shares;
(d) any securities issued in connection with any share split, share
dividend or other similar event in which all Participation Rights Holders are
entitled to participate on a pro rata basis;
(e) any securities issued upon the exercise, conversion or exchange of
any outstanding security if such outstanding security constituted a New
Security;
17
(f) any securities issued in connection with a bona fide business
acquisition of or by the Company, whether by consolidation, merger, purchase or
sale of assets, sale or exchange of shares or otherwise, in a single transaction
or series of related transactions;
(g) any securities or rights issued to persons or entities with which
the Company has business relationships provided such issuances are for primarily
other than equity financing purposes and approved by the Board;
(h) any securities issued or issuable pursuant to equipment lease
financings or bank credit lines approved by the Board; or
(i) any securities issued in connection with a public offering approved
by the Board.
In addition to the foregoing, the Right of Participation shall not be applicable
with respect to any Participation Rights Holder in any offering of New
Securities if (i) at the time of such offering, the Participation Rights Holder
is not an "accredited investor" as that terms is then defined in Rule 501(a) of
the Securities Act, and (ii) such offering of New Securities is otherwise being
offered only to accredited investors.
3.4 Procedures
(a) First Participate Notice
In the event that the Company proposes to undertake an issuance
of New Securities (in a single transaction or a series of related transactions),
it shall give to each Participation Rights Holder written notice of its bona
fide intention to issue New Securities (the "FIRST PARTICIPATION NOTICE"),
describing the amount and the type of New Securities and the price and the
general terms upon which the Company proposes to issue such New Securities.
Each Participation Rights Holder shall have ten (10) business
days from the date of receipt of any such First Participation Notice to agree in
writing to purchase such Participation Rights Holder's Pro Rata Share of such
New Securities for the price and upon the terms and conditions specified in the
First Participation Notice by giving written notice to the Company and stating
therein the quantity of New Securities to be purchased (not to exceed such
Participation Rights Holder's Pro Rata Share).
If any Participation Rights Holder fails to so agree in writing
within such ten (10) business day period to purchase such Participation Rights
Holder's full Pro Rata Share of an offering of New Securities, then such
Participation Rights Holder shall forfeit the right hereunder to purchase that
part of its Pro Rata Share of such New Securities that it did not so agree to
purchase.
(b) Second Participation Notice; Oversubscription
If any Participating Rights Holder fails to exercise its Right
of Participation in accordance with subsection (a) above, the Company shall
promptly give notice (the "SECOND PARTICIPATION NOTICE") to the other
Participating Rights Holders holding Registrable Securities and who have
exercised their Right of Participation (the "RIGHT PARTICIPANTS") in accordance
with subsection (a) above. Each Right Participant shall have five (5) business
days from the date of the Second Participation Notice (the "SECOND PARTICIPATION
PERIOD") to notify the Company of its desire to purchase more than its Pro Rata
Share of the New Securities, stating the number of the additional New Securities
it proposes to buy.
18
Such notice may be made by telephone if confirmed in writing
within two (2) business days.
If, as a result thereof, such oversubscription exceeds the total
number of the remaining New Securities available for purchase, each
oversubscribing Right Participant will be cut back by the Company with respect
to its oversubscriptions to that number of remaining New Securities equal to the
product obtained by multiplying (i) the number of the remaining New Securities
available for subscription by (ii) a fraction the numerator of which is the
number of Registrable Securities held by such oversubscribing Right Participant
and the denominator of which is the total number of Registrable Securities held
by all the oversubscribing Right Participants.
Each oversubscribing Rights Participant shall be obligated to
buy such number of additional New Securities as determined by the Company
pursuant to this subsection (b) and the Company shall so notify the Right
Participants within fifteen (15) business days of the date of the Second
Participation Notice.
3.5 Failure to Exercise
Upon the expiration of the Second Participation Period, or in the event
no Participation Rights Holder exercises the Right of Participation, after ten
(10) business days following the receipt of the First Participation Notice, the
Company shall have 120 days thereafter to sell the New Securities described in
the First Participation Notice (with respect to which the Right of Participation
pursuant to Section 3.3(a) and (b) hereunder was not exercised) at the same or
higher price and upon non-price terms not materially more favorable to the
purchasers thereof than specified in the First Participation Notice.
In the event that the Company has not issued and sold such New
Securities within such 120 day period, then the Company shall not thereafter
issue or sell any New Securities without again first offering such New
Securities to the Participation Rights Holders pursuant to this Section 3.
3.6 Termination
The Right of Participation for each Participation Rights Holder under
this Section 3 shall terminate upon a Qualified IPO.
4. TRANSFER RESTRICTIONS
4.1 Certain Definition
For purposes of this Section 4, "EQUITY SECURITIES" means the Ordinary
Shares, the Preferred Shares, and all other shares, options, warrants or other
securities that are directly or indirectly convertible into, or exercisable or
exchangeable for Ordinary Shares; a "MAJOR SHAREHOLDER" shall mean any holder of
Series A Shares or Series B Shares holding 3% or more of the Company's Ordinary
Shares into which such Series A Shares or Series B Shares are convertible or
19
have been converted and any holder of Series C Shares or Ordinary Shares into
which such Series C Shares are convertible or have been converted; and the term
"TRANSFER" shall include any sale, assignment, encumbrance, hypothecation,
pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or
other transfer or disposition of any kind, including, but not limited to,
transfers pursuant to divorce or legal separation, transfers to receivers,
levying creditors, trustees or receivers in bankruptcy proceedings or general
assignees for the benefit of creditors, whether voluntary, involuntarily or by
operation of law, directly or indirectly, of any of the Equity Securities.
4.2 Sale by Founder or Major Shareholder; Notice of Sale
Subject to Section 4.6 of this Agreement, if a Founder or a Major
Shareholder (the "SELLING SHAREHOLDER") proposes to Transfer any Equity
Securities, then the Selling Shareholder shall promptly give written notice (the
"TRANSFER NOTICE") to the Company and the Major Shareholders who are not Selling
Shareholders (the "NON-SELLING HOLDERS") prior to such Transfer. The Transfer
Notice shall describe in reasonable detail the proposed Transfer including,
without limitation, the number and type of Equity Securities to be sold or
transferred (the "OFFERED SHARES"), the nature of such Transfer, the
consideration to be paid, and the name and address of each prospective purchaser
or transferee. In the event that the Transfer is being made pursuant to the
provisions of Section 4.5, the Transfer Notice shall state under which specific
subsection the Transfer is being made.
4.3 Right of First Refusal
(a) The Company shall have an option for a period of ten (10) days from
delivery of the Transfer Notice to elect to purchase the Offered Shares at the
same price and subject to the same material terms and conditions as described in
the Transfer Notice. The Company may exercise such purchase option and purchase
all or any portion of the Offered Shares by notifying the Selling Shareholder in
writing before expiration of such ten (10) day period as to the number of such
shares that it wishes to purchase. If the Company gives the Selling Shareholder
notice that it desires to purchase such shares, then payment for the Offered
Shares shall be by check or wire transfer, against delivery of the Offered
Shares to be purchased at a place agreed upon between the parties and at the
time of the scheduled closing therefor, which shall be no later than forty-five
(45) days after delivery to the Company of the Transfer Notice, unless the
Transfer Notice contemplated a later closing with the prospective third-party
transferee(s) or unless the value of the purchase price has not yet been
established pursuant to Section 4.3(d). In the event that the Company elects not
to purchase all or any portion of the Offered Shares, it shall promptly give
written notice to each Non-Selling Holder which notice shall set forth the
Offered Shares not purchased by the Company, and shall offer the Non-Selling
Holders the right to acquire the unsubscribed Offered Shares (the "ADDITIONAL
TRANSFER NOTICE"). Each Non-Selling Holder will have the right of first refusal
to purchase up to all of the Holder Allotment (as defined below) of the Offered
Shares from the Selling Shareholder not purchased by the Company.
The Non-Selling Holders' right of first refusal may be exercised as
follows:
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(b) Holder Allotment
The Non-Selling Holder must, within twenty (20) days of the
receipt of the Additional Transfer Notice from the Company (the "PURCHASE RIGHT
PERIOD"), give written notice to the Selling Shareholder and to the Company of
the Non-Selling Holder's election to purchase that number of the Offered Shares
(the "HOLDER ALLOTMENT") equivalent to the product obtained by multiplying (i)
the aggregate number of the Offered Shares by (ii) a fraction, (B) the numerator
of which is the number of Ordinary Shares on an as-converted basis held by the
Non-Selling Holder at the time of the transaction and (B) the denominator of
which is the total number of Ordinary Shares owned by all the Non-Selling
Holders on an as-converted basis at the time of the transaction.
The Non-Selling Holder will not have a right to purchase any of
the Offered Shares unless the Non-Selling Holder exercises its right of first
refusal within the Purchase Right Period to purchase up to all of its Holder
Allotment of the Offered Shares.
In the event any Non-Selling Holder elects not to purchase its
Holder Allotment, then the Selling Shareholder shall promptly give written
notice (the "OVERALLOTMENT NOTICE") to each Non-Selling Holder that is
purchasing its full Holder Allotment (each, a "PARTICIPATING HOLDER") which
notice shall set forth the Offered Shares not purchased by the other Non-Selling
Holders, and shall offer the Participating Holders the right to acquire the
unsubscribed shares. Each Participating Holder shall have five (5) days after
delivery of the Overallotment Notice (and the Purchase Right Period shall be
extended by such period after delivery of the Overallotment Notice) to deliver a
written notice to the Selling Shareholder (the "PARTICIPATING HOLDERS
OVERALLOTMENT NOTICE") of its election to purchase its Holder Allotment of the
unsubscribed shares on the same terms and conditions as set forth in the
Overallotment Notice. For purposes of calculating the Holder Allotment with
respect to an Overallotment Notice, the denominator in such calculation shall be
the total number of Ordinary Shares owned by all the Participating Holders on an
as-converted basis on the date of the Transfer Notice.
Each Non-Selling Holder shall be entitled to apportion the
Offered Shares to be purchased among its partners, members and affiliates
(including in the case of a venture capital fund, predecessor and successor
funds and funds under common investment management), provided that such
Non-Selling Holder notifies the Selling Shareholder of such allocation.
(c) Expiration Notice
Within ten (10) days after expiration of the Purchase Right
Period the Company will give written notice (the "EXPIRATION NOTICE") to the
Selling Shareholder and Non-Selling Holders specifying either (i) that all of
the Offered Shares were subscribed by the Non-Selling Holders exercising their
rights of first refusal or (ii) that the Non-Selling Holders have not subscribed
for all of the Offered Shares in which case the Expiration Notice will specify
the Non-Selling Holders' Pro Rata Portion (as defined below) of the remaining
Offered Shares for the purpose of their co-sale right described in Section 4.4
below.
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(d) Purchase Price
The purchase price for the Offered Shares to be purchased by the
Non-Selling Holders exercising their right of first refusal will be the price
set forth in the Transfer Notice, but will be payable as set forth in this
Section 4.3(d). If the purchase price in the Transfer Notice includes
consideration other than cash, the cash equivalent value of the non-cash
consideration will be determined by the Board in good faith, which determination
will be binding upon the Company, the Non-Selling Holders and the Selling
Shareholder, absent fraud or error.
(e) Payment
Payment of the purchase price for the Offered Shares purchased
by any Non-Selling Holder shall be made within ten (10) days following the date
of the Expiration Notice, unless the Transfer Notice contemplated a later
closing with the prospective third party transferee(s) or unless the value of
the purchase price has not yet been established pursuant to this subsection (e).
Payment of the purchase price will be made by wire transfer or
check as directed by the Selling Shareholder, against delivery of the Offered
Shares to be purchased at a place agreed upon between the parties and at the
time of the scheduled closing therefor.
Should the purchase price specified in the Transfer Notice be
payable in property other than cash, the Non-Selling Holders shall have the
right to pay the purchase price in the form of cash equal in amount to the value
of such property (as determined pursuant to subsection (d) above.
(f) Rights as a Founder or Holder
If any Non-Selling Holder exercises its right of first refusal
to purchase the Offered Shares, then, upon the date the notice of such exercise
is given by such Non-Selling Holder, the Selling Shareholder will have no
further rights as a holder of such Offered Shares except the right to receive
payment for such Offered Shares from such Non-Selling Holder in accordance with
the terms of this Agreement, and the Selling Shareholder will forthwith cause
all certificate(s) evidencing such Offered Shares to be surrendered to the
Company for transfer to such Non-Selling Holder.
(g) Application of Co-Sale Right
If the Non-Selling Holders have not elected to purchase all of
the Offered Shares, then the sale of the remaining Offered Shares will become
subject to the Non-Selling Holders' co-sale right set forth in Section 4.4
below.
4.4 Co-Sale Right
To the extent that the Non-Selling Holders have not exercised their
right of first refusal with respect to all the Offered Shares, each Non-Selling
Holder shall have the right, exercisable upon written notice to the Selling
Shareholder within fifteen (15) days after receipt of the Expiration Notice, to
participate in such sale of the Equity Securities on the same terms and
conditions. To the extent one or more of the Non-Selling Holders exercise such
right of participation in accordance with the terms and conditions set forth
below, the number of Equity Securities that the Selling Shareholder may sell in
the transaction shall be correspondingly reduced.
22
The co-sale right of each Non-Selling Holder shall be subject to the
following terms and conditions:
(a) Non-Selling Holder's Pro Rata Portion
Each Non-Selling Holder may sell all or any part of that number
of shares of the Company held by it that is equal to the product obtained by
multiplying (i) the aggregate number of Equity Securities covered by the
Transfer Notice that have not been subscribed for pursuant to Section 4.3 above
by (ii) a fraction, (A) the numerator of which is the number of Ordinary Shares
owned by the Non-Selling Holder on an as-converted basis at the time of the
Transfer and (B) the denominator of which is the combined number of Ordinary
Shares of the Company at the time owned by all Non-Selling Holders and all
Selling Shareholders on an as-converted basis ("HOLDER'S PRO RATA PORTION").
(b) Transferred Shares
Each Non-Selling Holder shall effect its participation in the
sale by promptly causing the Company to deliver to the Selling Shareholder for
Transfer to the prospective purchaser one or more certificates, properly
endorsed for transfer, which represent:
(i) the type and number of Ordinary Shares which such
Non-Selling Holder elects to sell; or
(ii) that number of Preferred Shares which is at such time
convertible into the number of Ordinary Shares that such Non-Selling Holder
elects to sell; provided, however, that if the prospective purchaser objects to
the delivery of Preferred Shares in lieu of Ordinary Shares, such Non-Selling
Holder shall procure the Company to convert such Preferred Shares into Ordinary
Shares and shall procure the Company to deliver Ordinary Shares as provided in
Subsection 4.4(b)(i) above.
The Company agrees to make any such conversion concurrent with
and contingent on the actual Transfer of such shares to the purchaser.
(c) Payment to Non-Selling Holders
The share certificate or certificates that the Non-Selling
Holder delivers to the Selling Shareholder pursuant to Section 4.4(b) shall be
Transferred to the prospective purchaser in consummation of the sale of the
Equity Securities pursuant to the terms and conditions specified in the Transfer
Notice, and the Selling Shareholder shall concurrently therewith remit to such
Non-Selling Holder that portion of the sale proceeds to which such Non-Selling
Holder is entitled by reason of its participation in such sale.
To the extent that any prospective purchaser or purchasers
prohibits such assignment or otherwise refuses to purchase shares or other
securities from a Non-Selling Holder exercising its co-sale right hereunder, the
Selling Shareholder shall not sell to such prospective purchaser or purchasers
any Equity Securities unless and until, simultaneously with such sale, the
Selling Shareholder shall purchase such shares or other securities from such
Non-Selling Holder.
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(d) Right to Transfer
To the extent the Non-Selling Holders do not elect to purchase
or to participate in the sale of the Equity Securities subject to the Transfer
Notice, the Selling Shareholder may, not later than ninety (90) days following
delivery to the Company and each of the Non-Selling Holders of the Transfer
Notice, conclude a Transfer of the Equity Securities covered by the Transfer
Notice and not elected to be purchased by the Non-Selling Holders on terms and
conditions not materially different from those described in the Transfer Notice.
Any proposed Transfer on terms and conditions materially different from those
described in the Transfer Notice, as well as any subsequent proposed Transfer of
any Equity Securities by the Selling Shareholder, shall again be subject to the
right of first refusal and the co-sale rights of the Non-Selling Holders and
shall require compliance by the Selling Shareholder with the procedures
described in Section 4.3 and Section 4.4 of this Agreement. Furthermore, the
exercise or non-exercise of the rights of the Non-Selling Holders under this
Section 4 to purchase Equity Securities from the Selling Shareholder or
participate in sales of Equity Securities by the Selling Shareholder shall not
adversely affect their rights to make subsequent purchases from the Selling
Shareholder of Equity Securities or subsequently participate in sales of Equity
Securities by the Selling Shareholder.
4.5 Exempt Transfers
Notwithstanding the foregoing, and subject to Section 4.6(a) hereof, the
right of first refusal and co-sale rights of the Non-Selling Holders shall not
apply to (a) any pledge of the Founder Shares made pursuant to a bona fide loan
transaction that creates a mere security interest; (b) any Transfer to the
ancestors, descendants or spouse or to trusts for the benefit of such persons or
the Founders or the Major Shareholders; (b) any Transfer of shares to the
Company pursuant to any repurchase rights of the Company under any incentive
agreements or incentive plans approved by the Board; and (c) any Transfer to an
affiliate of the Major Shareholder, including a current or former partner of a
Major Shareholder who is a partnership, current or former member of a Major
Shareholder who is a limited liability company and current or former shareholder
of a Major Shareholder who is a corporation; provided that (i) the Transferring
Founder or Major Shareholder shall inform the Non-Selling Holders, of such
Transfer prior to effecting it and (ii) the Transferee shall furnish the Company
with a written agreement to be bound by and comply with all provisions of
Section 3 and Section 4 of this Agreement. Such Transferred Equity Securities
shall remain "Equity Securities" hereunder, and such Transferee shall be treated
as a "Founder" or a "Major Shareholder", as the case may be, for purposes of
this Agreement.
4.6 Prohibited Transfers
(a) Notwithstanding anything to the contrary contained herein, none of
the Founders shall, without the prior written consent of a majority in interest
of the Ordinary Shares (on an as-converted basis) held by the holders of the
Preferred Shares, voting as a single class, Transfer an aggregate of more than
twenty percent (20%) of the Ordinary Shares now held by such Founder to any
person or entity prior to a Qualified IPO by the Company.
(b) Any attempt by a Founder or a Major Shareholder to Transfer Equity
Securities in violation of this Section 4 shall be void and the Company agrees
it will not effect such a Transfer nor will it treat any alleged transferee as
the holder of such shares without the written consent of a majority in interest
of the Ordinary Shares (on an as-converted basis) held by the Non-Selling
Holders.
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(c) In the event the Selling Shareholder should sell any Equity
Securities in contravention of the co-sale rights of the Non-Selling Holders
under this Section 4 (a "PROHIBITED TRANSFER"), the Non-Selling Holders, in
addition to such other remedies as may be available at law, in equity or
hereunder, shall have the put option provided below under subsection (d), and
the Selling Shareholder shall be bound by the applicable provisions of such
option.
(d) In the event of a Prohibited Transfer, each Non-Selling Holder shall
have the right to sell to the Selling Shareholder the type and number of shares
of Equity Securities equal to the number of shares each Non-Selling Holder would
have been entitled to transfer to the third-party transferee(s) under Section 4
hereof had the Prohibited Transfer been effected pursuant to and in compliance
with the terms hereof. Such sale shall be made on the following terms and
conditions:
(i) The price per share at which the shares are to be sold to
the Selling Shareholder shall be equal to the price per share paid by the
third-party transferee(s) to the Selling Shareholder in the Prohibited Transfer.
The Selling Shareholder shall also reimburse each Non-Selling Holder for any and
all fees and expenses, including legal fees and expenses, incurred pursuant to
the exercise or the attempted exercise of the Non-Selling Holder's rights under
Section 4.
(ii) Within twenty (20) days after the later of the dates on
which the Non-Selling Holder (A) receives notice of the Prohibited Transfer or
(B) otherwise becomes aware of the Prohibited Transfer, each Non-Selling Holder
shall, if exercising the option created hereby, deliver to the Selling
Shareholder the certificate or certificates representing shares to be sold, each
certificate to be properly endorsed for transfer.
(iii) The Selling Shareholder shall, upon receipt of the
certificate or certificates for the shares to be sold by a Non-Selling Holder,
pursuant to this Section 4, pay the aggregate purchase price therefor and the
amount of reimbursable fees and expenses, as specified in subparagraph (i)
above, in cash or by other means acceptable to the Non-Selling Holder.
4.7 Legend
(a) Each certificate representing the Equity Securities now or hereafter
owned by a Founder or an Investor or issued to any person in connection with a
Transfer pursuant to Sections 4.3 and 4.4 hereof shall be endorsed with the
following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A
SHAREHOLDERS' AGREEMENT BY AND BETWEEN THE SHAREHOLDER, THE CORPORATION, CERTAIN
AFFILIATES OF THE CORPORATION AND CERTAIN SHAREHOLDERS OF THE CORPORATION.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY
OF THE CORPORATION."
(b) Each Founder and each Investor agrees that the Company may instruct
its transfer agent to impose transfer restrictions on the shares represented by
certificates bearing the legend referred to in Section 4.7(a) above to enforce
the provisions of this Agreement and the Company agrees to promptly do so.
25
The legend shall be removed upon termination of this Agreement.
4.8 Assignment and Amendment of Rights
(a) The rights of any Investor under this Section 4 are only assignable
(i) by any Investor to any other Investor, (ii) to a current or former partner,
member, shareholder or other affiliate (including in the case of an Investor
that is a venture capital fund, predecessor or successor funds of, or entities
under common investment management with such fund) of such Investor or (iii) to
an assignee or transferee who acquires all of the Equity Securities purchased by
an Investor; provided, that any such assignee shall receive such assigned rights
subject to all the terms and conditions of this Agreement.
(b) Any provision in this Section 4 may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only by the written consent of (i) as to the
Company, only by the Company, (ii) as to the Founders, by Founders holding a
majority in interest of all Ordinary Shares (on an as-converted basis) then held
by all Founders or their respective assignees pursuant to Section 4.8(a) hereof,
(iii) as to the Series B Investors, by persons or entities holding a majority in
interest of the Series B Shares held by the Series B Investors and their
assignees pursuant to Section 4.8(a) hereof; provided, however, that any Series
B Investor may waive any of its rights hereunder without obtaining the consent
of any other Series B Investor; (iv) as to a Series A Investor, by persons or
entities holding a majority in interest of the Series A Shares held by such
Series A Investor and their assignees pursuant to Section 4.8 (a) hereof;
provided, however, that any Series A Investor may waive any of its rights
hereunder without obtaining the consent of any other Series A Investors, and (v)
as to the Series C Investors, by persons or entities holding a majority in
interest of the Series C Shares held by the Series C Investors and their
assignees pursuant to Section 4.8(a) hereof.
Any amendment or waiver effected in accordance with clauses (i), (ii),
(iii), (iv) and (v) of this paragraph shall be binding upon each Investor, its
successors and assigns, the Company and the Founders.
4.9 Term
The provisions under this Section 4 shall terminate upon the earlier of
(i) a Qualified IPO, (ii) the closing of the Company's sale of all or
substantially all of its assets or the acquisition of the Company by another
entity by means of merger or consolidation resulting in the exchange of the
outstanding shares of the Company's capital shares for securities issued or
other consideration paid, or caused to be issued or paid, by the acquiring
entity or its subsidiary (except a merger or consolidation in which the holders
of the outstanding shares of the Company's capital shares immediately prior to
such merger or consolidation continue to hold at least fifty percent (50%) of
the voting power of the capital shares of the Company or the acquiring or
surviving entity), and (iii) the execution by the Company of a general
assignment for the benefit of creditors or the appointment of a receiver or
trustee to take possession of the property and assets of the Company.
26
5. ASSIGNMENT AND AMENDMENT
5.1 Assignment
Notwithstanding anything herein to the contrary:
(a) Information Rights
The rights of a shareholder under Section 1.1 are transferable
to any holder of Registrable Securities; provided, however, that no party may be
assigned any of the foregoing rights unless the Company is given written notice
by the assigning party at the time of such assignment stating the name and
address of the assignee and identifying the securities of the Company as to
which the rights in question are being assigned; and provided further, that any
such assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 5.
The rights of any Investor under Section 1.2 may not be
assigned.
(b) Registration Rights
The registration rights of a Holder under Section 2 hereof may
be assigned to any Holder; provided, however, that no party may be assigned any
of the foregoing rights unless the Company is given written notice by the
assigning party at the time of such assignment stating the name and address of
the assignee and identifying the securities of the Company as to which the
rights in question are being assigned; and provided further, that any such
assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 5.
(c) Rights of Participation
The rights of any Participation Rights Holder under Sections 3
hereof may not be assigned or transferred; provided, however, that a
Participation Rights Holder that is a venture capital fund may assign or
transfer such rights to its partners, members and affiliates (including
predecessor or successor funds of, or entities under common investment
management with such fund); and provided further, that any such assignee shall
receive such assigned rights subject to all the terms and conditions of this
Agreement.
5.2 Amendment of Rights
Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and
holders of 75% of each of (i) Series A Shares, (ii) Series B Shares and (iii)
Series C Shares; provided that, in the case of an amendment or waiver of any
provision of Section 2 hereof, only with the written consent of the Company and
the Holders of a majority of the Registrable Securities then outstanding and
entitled to the registration rights set forth in Section 2 hereof. Any amendment
or waiver effected in accordance with this Section 5.2 shall be binding upon
each Founder, Investor, each Holder, each permitted successor or assignee of
such Investor or Holder, and each Group Company.
27
6. CONFIDENTIALITY AND NON-DISCLOSURE
6.1 Disclosure of Terms
The terms and conditions of this Agreement and the Series C Purchase
Agreement, and all exhibits and schedules attached to such agreements
(collectively, the "FINANCING TERMS"), including their existence, shall be
considered confidential information and shall not be disclosed by any party
hereto to any third party except in accordance with the provisions set forth
below.
6.2 Press Releases, Etc.
The Company may issue a press release disclosing that certain Investors
invested in the Company; provided that the release does not disclose any of the
Financing Terms and the final form of the press release is approved in advance
in writing by the Investors.
No other announcement regarding any Investor in a press release,
conference, advertisement, announcement, professional or trade publication, mass
marketing materials or otherwise to the general public may be made without such
Investor's prior written consent.
6.3 Permitted Disclosures
Notwithstanding the foregoing,
(a) any party may disclose any of the Financing Terms to its current or
bona fide prospective investors, employees, investment bankers, lenders,
partners, accountants and attorneys, in each case only where such persons or
entities are under appropriate nondisclosure obligations; and
(b) any party may disclose (other than in a press release or other
public announcement described in subsection 6.2 above) solely the fact that any
Investor is an investor in the Company to any third parties without the
requirement for the consent of any other party or nondisclosure obligations.
6.4 Legally Compelled Disclosure
In the event that any party is requested or becomes legally compelled
(including without limitation, pursuant to securities laws and regulations) to
disclose the existence of this Agreement and the Series C Purchase Agreement,
and exhibits and schedules attached to such agreements, or any of the Financing
Terms hereof in contravention of the provisions of this Section 6, such party
(the "DISCLOSING PARTY") shall provide the other parties (the "NON-DISCLOSING
PARTIES") with prompt written notice of that fact and use all reasonable efforts
to seek (with the cooperation and reasonable efforts of the other parties) a
protective order, confidential treatment or other appropriate remedy. In such
event, the Disclosing Party shall furnish only that portion of the information
which is legally required and shall exercise reasonable efforts to keep
confidential such information to the extent reasonably requested by any
Non-Disclosing Party.
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6.5 Other Information
The provisions of this Section 6 shall be in addition to, and not in
substitution for, the provisions of any separate nondisclosure agreement
executed by any of the parties hereto with respect to the transactions
contemplated hereby.
6.6 Notices
All notices required under this section shall be made pursuant to
Section 8.1 of this Agreement.
7. PROTECTIVE PROVISIONS
7.1 Acts of the Company
(a) The following actions, whether by merger, consolidation or
otherwise, with respect to the Company, or any direct or indirect subsidiary of
the Company (each such entity, including without limitation, the Company, shall
be referred to herein as a "CTRIP ENTITY"), shall require the written approval
of the holder(s) of (a) not less than seventy-five percent (75%) of the
outstanding Series A Shares (in respect of actions affecting Series A Shares)
(b) not less than seventy-five percent (75%) of the outstanding Series B Shares
(in respect of actions affecting Series B Shares) and (c) not less than fifty
percent (50%) of the outstanding Series C Shares (in respect of actions
affecting Series C Shares):
(i) any amendment or change of the authorized number of or the
rights, preferences, privileges or powers of, or the restrictions provided for
the benefit of, the Series A Shares, Series B Shares or Series C Shares;
(ii) any action that authorizes, creates or issues shares of any
class or series of the Company having preferences superior to or on a parity
with the Series A Shares, Series B Shares or Series C Shares;
(iii) any new issuance of any securities of a Ctrip Entity,
excluding (a) any issuance of the Series A Shares, Series B Shares and Series C
Shares under the Series C Purchase Agreement, (b) any issuance of Ordinary
Shares upon conversion of the Series A Shares, Series B Shares or Series C
Shares and (c) any issuance of Ordinary Shares to employees under an employee
stock option plan approved by the Board.
(iv) any action that reclassified any outstanding shares into
shares having preferences or priority as to dividends or assets senior to or on
a parity with the preference of the Series A Shares, Series B Shares or Series C
Shares;
(v) any amendment of the Memorandum and Articles of Association
or other charter documents of a Ctrip Entity;
(vi) redeem, purchase or otherwise acquire (or pay into or set
aside for a sinking fund for such purpose) any shares of a Ctrip Entity; or
(vii) consummate a Liquidation Event (as defined below) with
respect to a Ctrip Entity if such Liquidation Event would be consummated at an
equity valuation of such Ctrip Entity of less than One Hundred Fifty Million
Dollars (US$150,000,000).
29
A "LIQUIDATION EVENT" shall include (A) the closing of the sale, transfer, or
other disposition of all or substantially all of a Ctrip Entity's assets, (B)
the consummation of the merger or consolidation of a Ctrip Entity with or into
another entity (except a merger or consolidation in which the holders of capital
stock of such Ctrip Entity immediately prior to such merger or consolidation
continue to hold at least 50% of the voting power of the capital shares of such
Ctrip Entity or the surviving or acquiring entity in substantially the same
proportions as held by such holders immediately prior to such merger or
consolidation), (C) the closing of the transfer (whether by merger,
consolidation or otherwise), in one transaction or a series of related
transactions, to a person or group of affiliated persons (other than an
underwriter of such Ctrip Entity's securities), of a Ctrip Entity's securities
if, after such closing, such person or group of affiliated persons would hold
50% or more of the outstanding voting shares of such Ctrip Entity (or the
surviving or acquiring entity), or (D) a liquidation, dissolution or winding up
of a Ctrip Entity; provided, however, that a transaction shall not constitute a
Liquidation Event if its sole purpose is to change the jurisdiction of a Ctrip
Entity's incorporation or formation or to create a holding company that will be
owned in substantially the same proportions by the persons who held such Ctrip
Entity's securities immediately prior to such transaction.
(b) The following actions, whether by merger, consolidation or
otherwise, with respect to any Ctrip Entity shall require the written approval
of not less than eight (8) members of the Board:
(i) any merger or consolidation of a Ctrip Entity with or into
any other business entity in which the shareholders of such Ctrip Entity
immediately after such merger or consolidation held shares representing less
than a majority of the voting power of the outstanding share capital of the
surviving business entity;
(ii) the sale of all or substantially all of a Ctrip Entity's
assets;
(iii) the liquidation, dissolution or winding up of a Ctrip
Entity;
(iv) the declaration or payment of a dividend on the shares of a
Ctrip Entity (other than dividend payable solely in Ordinary Shares);
(v) incurrence of indebtedness by a Ctrip Entity in excess
US$2,000,000;
(vi) any increase in compensation of any of the four (4) most
highly compensated employees of a Ctrip Entity by more than 15% in a twelve (12)
month period;
(vii) the purchase or lease by a Ctrip Entity of any real estate
(other than office space used for the primary operations of such Ctrip Entity)
valued in excess of US$2,000,000;
(viii) the purchase by a Ctrip Entity of equity securities of
any other company in excess of US$2,000,000; and
(ix) any material changes in the nature or scope of business of
a Ctrip Entity.
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8. GENERAL PROVISIONS
8.1 Notices
Unless otherwise provided, all notices and other communications required
or permitted hereunder shall be in writing and shall be deemed effectively given
(a) upon personal delivery to the party to be notified, (b) when sent by
confirmed electronic mail or facsimile if sent during normal business hours of
the recipient; if not, then on the next business day, (c) ten (10) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) two (2) days after deposit with an internationally
recognized overnight courier, specifying next day or two day delivery, with
written verification of receipt. All communications shall be sent to the
respective parties at the addresses set forth in Exhibit F hereto.
Each person making a communication hereunder by facsimile shall promptly
confirm by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication.
A party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this Section 9.1 by giving the other party
written notice of the new address in the manner set forth above.
8.2 Tax
(a) Each Group Company shall use its best efforts to avoid being a
"passive foreign investment company" within the meaning of Section 1297 of the
Code within two years from the date hereof. In connection with a "Qualified
Electing Fund" election made by an Investor pursuant to Section 1295 of the
Code, each Group Company shall provide annual financial information to such
Investor in the form provided in the attached PFIC Exhibit and shall provide
such Investor with access to such other Group Company information as may be
required for purposes of filing U.S. federal income tax returns in connection
with such Qualified Electing Fund election. In the event that an Investor who
has made a "Qualified Electing Fund" election must include in its gross income
for a particular taxable year its pro rata share of a Group Company's earnings
and profits pursuant to Section 1293 of the Code, such Group Company agrees to
make a dividend distribution to such Investor (no later than 90 days following
the end of the Investor's taxable year) in an amount equal to 50% of the amount
so included by such Investor. The obligations of each of the Group Companies
under this Section 8.2(a) hereof shall terminate upon a Qualified IPO.
(b) Except to the extent the Series C Investors elect otherwise, each
Group Company shall take such actions, including making an election to be
treated as a corporation or refraining from making an election to be treated as
a partnership, as may be required to ensure that at all times such Group Company
is treated as a corporation for United States federal income tax purposes. The
obligation of the Company under this Section 8.2(b) shall terminate within two
years of the date hereof.
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8.3 Preservation of Existence
Unless approved by the Board, each Group Company shall, and shall cause
each PRC VIE (as defined in the Series C Purchase Agreement) to:
(a) preserve and maintain in full force and effect its existence and
good standing under the laws of its jurisdiction of formation or organization
where the failure to so preserve and maintain would have a material adverse
effect on the assets, properties, financial condition, operating results, or
business of the Group Companies (as such businesses are currently conducted and
are proposed to be conducted);
(b) preserve and maintain in full force and effect all licenses and
permits where the failure to so preserve and maintain would have a material
adverse effect on the assets, properties, financial condition, operating
results, or business of the Group Companies (as such businesses are currently
conducted and are proposed to be conducted); and
(c) comply in all material respects with all laws, ordinances, rules and
regulations, as well as judicial interpretations and decisions and with the
directions of any governmental authority or regulatory body having jurisdiction
over any of the Group Companies or their respective businesses or properties,
where the failure to so comply would have a material adverse effect on the
assets, properties, financial condition, operating results, or business of the
Group Companies (as such businesses are currently conducted and are proposed to
be conducted).
8.4 Fundamental Changes
Unless approved by the Board, each Group Company shall not, and shall
cause each PRC VIE (as defined in the Series C Purchase Agreement) not to,
directly or indirectly, enter into any transaction or series of related
transactions of merger, amalgamation, consolidation or combination, or
consolidate, liquidate, windup or dissolve itself (or suffer any liquidation or
dissolution), or sell, transfer or otherwise dispose of, in one transaction or
in a series of transactions all or substantially all of its business, property
or assets, whether now owned or hereafter acquired.
8.5 Entire Agreement
This Agreement, together with all the Exhibits hereto, constitutes and
contains the entire agreement and understanding of the parties with respect to
the subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof, and that certain Shareholders
Agreement by and between the Company and the other parties thereto dated
November 13, 2000 is hereby amended and restated in its entirety and shall be of
no further force and effect.
8.6 Governing Law; Jurisdiction
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to any choice of law rule
that would cause the application of the laws of any jurisdiction other than the
internal laws of the State of New York to the rights and obligations of the
parties. Each party hereto irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement may be brought in any
32
state or federal court in the State of New York. The parties hereto hereby
irrevocably submit to the exclusive jurisdiction of such courts in any such
action or proceeding and irrevocably waive the defense of an inconvenient forum
to the maintenance of any such action or proceeding.
8.7 Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, then such provision(s) shall be excluded from this
Agreement and the balance of this Agreement shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
8.8 Third Parties
Nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties hereto and their permitted successors
and assigns any rights or remedies under or by reason of this Agreement.
8.9 Successors and Assigns
The provisions of this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and permitted assigns of the parties
hereto.
8.10 Interpretation; Captions
This Agreement shall be construed according to its fair language. The
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not be employed in interpreting this Agreement.
The captions to sections of this Agreement have been inserted for
identification and reference purposes only and shall not be used to construe or
interpret this Agreement.
8.11 Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
8.12 Adjustments for Share Splits, Etc.
Wherever in this Agreement there is a reference to a specific number of
shares of Ordinary Shares, Series A Shares, Series B Shares or Series C Shares
of the Company, then, upon the occurrence of any subdivision, combination or
share dividend of Ordinary Shares, Series A Shares, Series B Shares or Series C
Shares, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the effect on the
outstanding shares of such class or series of shares by such subdivision,
combination or share dividend.
8.13 Aggregation of Shares
All Ordinary Shares and Preferred Shares held or acquired by affiliated
entities or persons shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
33
[Remainder of Page Intentionally Left Blank.]
34
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
▇▇▇▇▇.▇▇▇ INTERNATIONAL, LTD.
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
▇▇▇▇▇.▇▇▇ (HONG KONG) LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
CTRIP COMPUTER TECHNOLOGY (SHANGHAI)
LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
CTRIP TRAVEL INFORMATION TECHNOLOGY
(SHANGHAI) LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Signature Page to Shareholders Agreement - 1
SERIES A INVESTORS
CHINA ENTERPRISE INVESTMENTS No. 11
LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
IDG TECHNOLOGY VENTURE INVESTMENT, INC.
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
S.I. TECHNOLOGY VENTURE CAPITAL LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
ECITY INVESTMENT LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Signature Page to Shareholders Agreement - 2
ORCHID ASIA II, L.P. a Cayman Islands
limited partnership
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇
JFI II, LP By: Joost Enterprises
Corporation Its: GP
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
/s/ ▇▇▇▇ ▇▇
----------------------------------------
▇▇▇▇ ▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇▇
Signature Page to Shareholders Agreement - 3
SERIES B INVESTORS
CARLYLE ASIA VENTURE PARTNERS I, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇
--------------------------------------------
Executed as a deed by ▇▇▇▇▇▇▇ ▇▇
On behalf of CIPA, Ltd., as general partner
of CIPA General Partner, L.P., as a general
partner of Carlyle Asia Venture Partners I,
L.P.
CIPA CO-INVESTMENT, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇
--------------------------------------------
Executed as a deed by ▇▇▇▇▇▇▇ ▇▇ On behalf
of CIPA, Ltd., as general partner of CIPA
General Partner, L.P., as a general partner
of CIPA Co-Investment, L.P.
SOFTBANK ASIA NET-TRANS (NO.4) LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Signature Page to Shareholders Agreement - 4
OPENVENTURE COMPANY LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
IDG TECHNOLOGY VENTURE INVESTMENTS, LP.
By: IDG TECHNOLOGY VENTURES INVESTMENTS,
LLC, its general partner
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
S.I. TECHNOLOGY VENTURE CAPITAL LIMITED
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
ORCHID ASIA II, L.P.
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Signature Page to Shareholders Agreement - 5
JFI II, L.P. By: Joost Enterprises
Corporation
Its: GP
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇
/s/ ▇▇▇▇ ▇▇
----------------------------------------
▇▇▇▇ ▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇▇▇
Signature Page to Shareholders Agreement - 6
SERIES C INVESTORS
TIGER TECHNOLOGY PRIVATE INVESTMENT
PARTNERS, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title:
----------------------------------
TIGER TECHNOLOGY II, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title:
----------------------------------
ORDINARY INVESTOR
IDG TECHNOLOGY VENTURE INVESTMENT, INC.
By: /s/
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
FOUNDERS
/s/ ▇▇▇ ▇▇▇▇ ▇▇▇▇
----------------------------------------
▇▇▇ ▇▇▇▇ Shen
Signature Page to Shareholders Agreement - 7
/s/ Jian ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Jian ▇▇▇▇▇ ▇▇▇▇▇
/s/ Qi Ji
-----------------------------------------
Qi Ji
/s/ ▇▇▇ ▇▇▇
-----------------------------------------
▇▇▇ ▇▇▇
MODERN EXPRESS SHAREHOLDERS
/s/ Xi ▇▇▇▇ ▇▇▇▇
-----------------------------------------
Xi ▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇ ▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇ Wang
/s/ ▇▇▇▇ ▇▇▇▇ Li
-----------------------------------------
▇▇▇▇ ▇▇▇▇ Li
/s/ ▇▇▇▇ ▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇
Signature Page to Shareholders Agreement - 8
/s/ Ze ▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Ze ▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇ ▇▇▇
-----------------------------------------
▇▇ ▇▇▇
Signature Page to Shareholders Agreement - 9
LIST OF EXHIBITS
Exhibit A Schedule of Series A Investors
Exhibit B Schedule of Series B Investors
Exhibit D Schedule of Founders
Exhibit E Schedule of Modern Express Shareholders
Exhibit F Particulars of the Company, the HK Subsidiary,
Ctrip Computer Technology and Ctrip Shanghai
Exhibit G Notices
Exhibits
EXHIBIT A
SCHEDULE OF SERIES A INVESTORS
ORCHID ASIA II, L.P.
JFI II, LP
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇
CHINA ENTERPRISE INVESTMENTS NO. 11 LIMITED
IDG TECHNOLOGY VENTURE INVESTMENT, INC.
S.I. TECHNOLOGY VENTURE CAPITAL LIMITED
ECITY INVESTMENT LIMITED
Exhibit A-1
EXHIBIT B
SCHEDULE OF SERIES B INVESTORS
CARLYLE ASIA VENTURE PARTNERS I, L.P.
CIPA CO-INVESTMENT, L.P.
SOFTBANK ASIA NET-TRANS (NO.4) LIMITED
OPENVENTURE COMPANY LIMITED
IDG TECHNOLOGY VENTURE INVESTMENTS, LP.
S.I. TECHNOLOGY VENTURE CAPITAL LIMITED
ORCHID ASIA II, L.P.
JFI II, LP
▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Exhibit B-1
EXHIBIT C
SCHEDULE OF SERIES C INVESTORS
TIGER TECHNOLOGY PRIVATE INVESTMENT PARTNERS, L.P.
TIGER TECHNOLOGY II, L.P.
Exhibit C-1
EXHIBIT D
SCHEDULE OF FOUNDERS
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
QI JI
▇▇▇ ▇▇▇
Exhibit D-1
EXHIBIT E
SCHEDULE OF MODERN EXPRESS SHAREHOLDERS
▇▇▇▇▇▇ ▇▇▇▇
SHENGLI ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ TAN
ZE ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇
Exhibit E-1
EXHIBIT F
PARTICULARS OF THE COMPANY
NAME : ▇▇▇▇▇.▇▇▇ International, Ltd.
COMPANY : CR-97668
REGISTRATION NO.
REGISTERED OFFICE : M&C Corporate Services Limited, ▇.▇. ▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇ House,
South Church Street, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands
DATE AND PLACE OF : March 3, 2000; Cayman Islands
INCORPORATION
AUTHORISED SHARE : US$515,134.64 divided into 40,000,000 ordinary shares of par value of
CAPITAL US$0.01 each, 4,320,000 Series A Preferred Shares of par value US$0.01
each and 7,193,464 Series B Preferred Shares of par value of US$0.01 each
PARTICULARS OF THE HK SUBSIDIARY
NAME : ▇▇▇▇▇.▇▇▇ (Hong Kong) Limited
COMPANY : 678553
REGISTRATION NO.
REGISTERED OFFICE : ▇▇▇▇ ▇▇▇▇, ▇▇/▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇.
DATE AND PLACE OF : June 11, 1999; Hong Kong
INCORPORATION
AUTHORISED SHARE : US$250,000 divided into 250,000 ordinary shares of US$1.00 each
CAPITAL
Exhibit F-1
PARTICULARS OF CTRIP COMPUTER TECHNOLOGY
NAME : Ctrip Computer Technology (Shanghai) Limited
REGISTRATION NO. : Qi Du Hu Fu Zi No. 015676
REGISTERED OFFICE : ▇▇, ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ of China
DATE AND PLACE OF INCORPORATION : January 19, 1994; Shanghai, People's Republic of China
REGISTERED CAPITAL : US$8,000,000
PARTICULARS OF CTRIP SHANGHAI
NAME : Ctrip Travel Information Technology (Shanghai) Limited
REGISTRATION NO. : Qi ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇ (▇▇▇▇▇▇)
REGISTERED OFFICE : ▇▇▇▇▇ ▇▇▇-▇▇, ▇▇▇▇▇▇▇▇ ▇, 351 Guo Shou Jing Road, Zhangjiang High-Tech Park,
Shanghai, People's Republic of China
DATE AND PLACE OF : ▇▇▇▇▇ ▇▇, ▇▇▇▇; ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ of China
INCORPORATION
REGISTERED CAPITAL : US$150,000
Exhibit F-2
EXHIBIT G
NOTICES
The Company:
-----------
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇▇-▇▇▇▇
Carlyle Asia Venture Partners I, L.P.
-------------------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇'▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇
Fax Number: (▇▇▇) ▇▇▇▇-▇▇▇▇
CIPA Co-Investment, L.P.
------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇'▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇
Fax Number: (▇▇▇) ▇▇▇▇-▇▇▇▇
Ecity Investment Limited
------------------------
2nd Floor, Le Prince ▇▇ ▇▇▇▇▇▇
▇-▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax Number: (377) 97 97 47 30-
With a copy to:
Springfield Financial Advisory Limited
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇
Fax No. (▇▇▇) ▇▇▇▇-▇▇▇▇
Exhibit G-1
With a copy to:
Morningside Asia Advisory Limited
Suite 2311, Hang Lung Centre
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.(▇▇▇) ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇
▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇-▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
PRC
Fax Number: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Qi Ji
-----
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
PRC
Fax Number: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
PRC
Fax Number: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Softbank Asia Net-Trans (No. 4) Limited
---------------------------------------
▇▇▇ ▇▇▇▇▇, ▇▇▇ Center
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇▇-▇▇▇▇
Openventure Company Limited
---------------------------
▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax Number: ▇▇▇-▇▇▇▇-▇▇▇▇
Exhibit G-2
IDG Technology Venture Investments, LP.
---------------------------------------
▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Attention: Zhang Suyang
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Dajie
Beijing 100005
Attention: Zhang Suyang
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
S. I. Technology Venture Capital Limited
----------------------------------------
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
No. 98 Huai Hai Road Central
Shanghai 200021
PRC
Attention: Hu ▇▇ ▇▇▇
Fax Number: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Orchid Asia II, L.P.
--------------------
Suite 5180, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
U.S.A.
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇
----------
Suite 5180, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇, ▇▇
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▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇
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Suite 5180, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
Exhibit G-3
▇▇▇ ▇▇▇▇▇▇▇
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Suite 5180, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
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Suite 5180, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
China Enterprise Investments No. 11 Limited
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▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇▇-▇▇▇▇
IDG Technology Venture Investment, Inc.
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▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Attention: Zhang Suyang
Fax Number: (▇) ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Dajie
Beijing 100005
Attention: Zhang Suyang
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Tiger Technology Private Investment Partners, L.P.
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tiger Technology II, L.P.
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Exhibit G-4
Xi ▇▇▇▇ ▇▇▇▇
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6F-G, Block A, ▇▇▇▇ ▇▇▇▇ Plaza Office ▇▇▇▇▇▇▇▇,
▇▇.▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ C
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
-------------
6F-G, Block A, ▇▇▇▇ ▇▇▇▇ Plaza Office ▇▇▇▇▇▇▇▇,
▇▇.▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ C
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇ Li
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6F-G, Block A, ▇▇▇▇ ▇▇▇▇ Plaza Office ▇▇▇▇▇▇▇▇,
▇▇.▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ C
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇
--------
6F-G, Block A, ▇▇▇▇ ▇▇▇▇ Plaza Office ▇▇▇▇▇▇▇▇,
▇▇.▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ C
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Ze ▇▇▇▇▇ ▇▇▇▇
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6F-G, Block A, ▇▇▇▇ ▇▇▇▇ Plaza Office ▇▇▇▇▇▇▇▇,
▇▇.▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ C
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇
------
6F-G, Block A, ▇▇▇▇ ▇▇▇▇ Plaza Office ▇▇▇▇▇▇▇▇,
▇▇.▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ C
Fax: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Exhibit G-5