Second Amendment Agreement between Mr Lin Shuipan and Richwise International Investment Group Limited as Selling Shareholders Dr Shi Jinlei as Indemnifier Elevatech Limited as Investor and Xdlong International Company Limited
DATED: 2
June 2008
Hong
Kong/020/063588-00001/JDH/PYYL:
L_LIVE_APAC1:549180v3
L_LIVE_APAC1:549180v3
between
▇▇ ▇▇▇
Shuipan and Richwise International Investment Group Limited
as
Selling Shareholders
▇▇ ▇▇▇
Jinlei
as
Indemnifier
Elevatech
Limited
as
Investor
and
Xdlong
International Company Limited
as Company
relating
to
a Share
Purchase Agreement dated 28 March 2008 as amended and restated by an Amendment
and Restatement Agreement dated 30 April 2008
THIS
AGREEMENT is
dated 2 June 2008 and made
BETWEEN:
|
(1)
|
▇▇
▇▇▇ SHUIPAN, (“Founder
Shareholder”) holder of PRC
passport number ▇▇▇▇▇▇▇▇▇ of ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Village, Chendai Town, Jinjiang City, Fujian Province,
PRC;
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|
(2)
|
RICHWISE
INTERNATIONAL INVESTMENT GROUP LIMITED, (“Richwise”) a company
incorporated in the British Virgin Islands having its registered office at
Sea Meadow House, Blackburne Highway, Road Town, Tortola, British Virgin
Islands;
|
|
(3)
|
▇▇
▇▇▇ JINLEI (“Indemnifier”), holder of Hong Kong identity card
number ▇▇▇▇▇▇▇(▇), whose address is at ▇/▇, ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇;
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|
(4)
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ELEVATECH
LIMITED,
(“Investor”), a
company incorporated in Hong Kong and having its registered office at
68th
Floor, ▇▇▇▇▇▇ Kong Center, 2 Queen’s Road, Central, Hong Kong;
and
|
|
(5)
|
XDLONG
INTERNATIONAL COMPANY LIMITED, (“Company”),
registered in the Cayman Islands having company number CT-207339 and
having its registered office at Cricket Square, ▇▇▇▇▇▇▇▇ Drive, P.O. Box
2681, Grand Cayman KY1-1111, Cayman
Islands.
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BACKGROUND:
|
A.
|
The
parties to this Agreement (“Parties”) are parties to a share purchase
agreement with respect
to a certain number of preferred shares in the issued share capital of the
Company
dated
28 March 2008 as amended and restated by an Amendment and
Restatement
Agreement
dated 30 April 2008 between the Parties (“Share Purchase
Agreement”).
|
|
B.
|
The
Parties have agreed to further amend the Share Purchase Agreement on and
subject to
the terms of this Agreement.
|
IN
CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT THE PARTIES
AGREE as
follows:
|
1.
|
Interpretation
|
|
1.1
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The
terms of clauses 1.1 and 1.2 of the Share Purchase Agreement shall apply
to this Agreement with such changes as are
necessary.
|
|
2.
|
Amendments
to the
Share Purchase
Agreement
|
|
2.1
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With
effect from the date of this Agreement, the Share Purchase Agreement is
further amended by:
|
|
(A)
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deleting
the original clause 5.5(B) of the Share Purchase Agreement in its entirety
and replacing by the following new clause
5.5(B):
|
|
“(B)
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The
Selling Shareholders can jointly serve on the Investor a notice setting
out the indicative price range of the offer shares for the proposed IPO
and the possible non-occurrence of a Qualified IPO (“Pricing
Notice”) if:
|
1
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(1)
|
a
listing is granted by a Stock Exchange;
and
|
|
(2)
|
in
the determination of the indicative price range for the proposed IPO, the
Selling Shareholders become aware that a market capitalization of US$650
million may not be
achieved based upon the price at the lower end of such indicative
price range.”;
|
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(B)
|
deleting
the original paragraph 9.3 in schedule 5 – Adjustment of Consideration
of
the
Share Purchase Agreement in its entirety and replacing by the following
new
paragraph
9.3:
|
|
“9.3
|
If,
prior to a Qualified IPO, there is any shortfall between the number of
Shares that are held and transferable by any Selling Shareholder to the
Investor at the time of an Adjustment Event and the number of Shares such
Selling Shareholder is obliged to transfer to the Investor pursuant to
paragraphs 2, 3 and/or 4, the Investor shall have the right (but not the
obligation) to require the Selling Shareholders to purchase all or a part
of the Investor Shares for cash at a per Share price that shall be sum of
the Initial Valuation per Share plus a return that yields 12% IRR of the
Performance Adjusted Per Share Price. For the avoidance of doubt, the word
“transferable” when used in this paragraph 9.3 in relation to Shares of
the Selling Shareholders shall mean those Shares of the Selling
Shareholders which are not subject to any disposal restriction under any
applicable rules or regulations of the Stock
Exchange.”;
|
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(C)
|
deleting
the original paragraph 10.1 in schedule 5 – Adjustment of Consideration
of
the
Share Purchase Agreement in its entirety and replacing by the following
new
paragraph
10.1:
|
|
“10.1
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The
Investor shall have a right to elect, by notice in writing to the Selling
Shareholders, that the value of the Adjustment Shares, the Further
Adjustment Shares or the IPO Adjustment Shares (as the case may be) be
paid in cash to the Investor by the Selling Shareholders in lieu of the
Selling Shareholders transferring the Adjustment Shares, the Further
Adjustment Shares or the IPO Adjustment Shares (as the case may
be).
|
|
(A)
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The
cash payable upon occurrence of any Adjustment Event pursuant to paragraph
2 or 3 shall be calculated as
follows:
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|
Cash
payment
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= |
the
number of
Adjustment
Shares
or
Further
Adjustment
Shares
|
X
|
the
average closing price of the Company’s Shares quoted by the Hong Kong
Stock Exchange or any other Stock Exchange where the Company’s Shares are
traded for the 10 trading days prior to the election by the
Investor.
|
|
(B)
|
The
cash payable upon occurrence of an Adjustment Event pursuant to paragraph
11 shall be calculated as
follows:
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|
Cash
payment
|
=
|
the
number of IPO
Adjustment Shares
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X
|
IPO
Price”;
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2
|
(D)
|
immediately
following the last sentence of paragraph 10.2 in schedule 5 – Adjustment
of Consideration of the Share Purchase Agreement, insert the
following:
|
“For the
avoidance of doubt, the word “transferable” when used in this paragraph 10.2 in
relation to Shares of the Selling Shareholders shall mean those Shares of the
Selling Shareholders which are not subject to any disposal restriction under any
applicable rules or regulations of the Stock Exchange.”
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2.2
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With
effect from the date of this Agreement, the rights and obligations of the
Parties shall be governed by the Share Purchase Agreement as amended by
this Agreement.
|
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3.
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Amendments not to
Affect Validity, Rights or
Obligations
|
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3.1
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Continuing
Provisions
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The
provisions of the Share Purchase Agreement shall, in respect of the period up to
the date of this Agreement, continue in full force and effect in accordance with
their terms.
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3.2
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No
Prejudice or Discharge
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Nothing
in this Agreement:
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(A)
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prejudices
or adversely affects any right, power, authority, discretion or remedy
arising under the Share Purchase Agreement before the date of this
Agreement; or
|
|
(B)
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discharges,
releases or otherwise affects any liability or obligation arising under
the Share Purchase Agreement before the date of this
Agreement.
|
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4.
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General
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4.1
|
The
terms of clauses 13.2, 13.5, 13.7 and 13.8 of the Share Purchase Agreement
shall be incorporated into this Agreement and have effect in full as if
set out in this Agreement and as if references therein to “this Agreement”
are references to this Agreement and such other changes as are
necessary.
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5.
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Law and
jurisdiction
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5.1
|
The
terms of clause 15 of the Share Purchase Agreement shall be incorporated
into this Agreement and have effect in full as if set out in this
Agreement and as if references therein to “this Agreement” are references
to this Agreement and such other changes as are
necessary.
|
3
AS
WITNESS the
hands of the Parties or their duly authorised representatives the day and year
first above written.
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SIGNED
by ▇▇ ▇▇▇
SHUIPAN
|
)
|
 |
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SIGNED
by ▇▇ ▇▇▇▇▇ ▇▇▇
duly
authorised for and on
behalf
of RICHWISE
INTERNATIONAL
INVESTMENT
GROUP LIMITED
|
)
)
)
)
|
 |
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SIGNED
by ▇▇. ▇▇▇▇▇
▇▇▇
|
)
|
 |
|
SIGNED
by Mr ▇▇▇▇▇ ▇▇▇▇▇
duly
authorised for and on
behalf
of the ELEVATECH
LIMITED
|
)
)
)
|
|
|
SIGNED
by ▇▇ ▇▇▇ Shuipan
duly
authorised for and on
behalf
of XDLONG
INTERNATIONAL
COMPANY
LIMITED
|
)
)
)
|
 |
4
AS
WITNESS the
hands of the Parties or their duly authorised representatives the day and year
first above written.
|
SIGNED
by ▇▇ ▇▇▇
SHUIPAN
|
)
|
|
|
SIGNED
by ▇▇ ▇▇▇▇▇ ▇▇▇
duly
authorised for and on
behalf
of RICHWISE
INTERNATIONAL
INVESTMENT
GROUP LIMITED
|
)
)
)
)
|
|
|
SIGNED
by ▇▇. ▇▇▇▇▇
▇▇▇
|
)
|
|
|
SIGNED
by Mr ▇▇▇▇▇ ▇▇▇▇▇
duly
authorised for and on
behalf
of the ELEVATECH
LIMITED
|
)
)
)
|
 |
|
SIGNED
by ▇▇ ▇▇▇ Shuipan
duly
authorised for and on
behalf
of XDLONG
INTERNATIONAL
COMPANY
LIMITED
|
)
)
)
|
4