FOURTH SHAREHOLDERS AMENDMENT AGREEMENT
Exhibit 4.3.5
FOURTH SHAREHOLDERS AMENDMENT AGREEMENT
Dated December 4, 2009
This Fourth Amendment Agreement is entered into between the parties signing below in relation to a
Shareholders Agreement dated 17 September 2004 as amended by an Amendment Agreement dated 12
September 2007, a Second Amendment dated 30 November 2007, and a Third Amendment dated June, 2008,
and entered into between all of the signatories hereto (or their predecessors-in-title)
(hereinafter “Shareholders Agreement”).
By an agreement dated December 4, 0000, Xxxxxxx Media Group (the “Company”) agreed to issue up to
50,943 US$0.10 par value Class G Preference Shares in aggregate (“New Shares”) to the investors as
listed on Schedule A hereto (the “Series G Investors”). It was a condition of the Series G
Investor agreeing to subscribe for the New Shares that each of the shareholders and the Company
(who, together with the Series G Investor, with the exception of the Series F Investors, are
referred to herein as “Parties” and each a “Party”) have agreed to enter into this Fourth
Amendment Agreement to the Shareholders Agreement so as to govern the terms upon which shares
shall be held in the Company.
Terms and Expressions defined in the Shareholders Agreement shall, save where amended by the terms
of this Fourth Amendment Agreement, have the same meaning herein. References to clause numbers
shall mean the clause with such number in the Shareholders Agreement.
In consideration of the foregoing and of the mutual covenants and undertakings of the Parties, the
Parties have agreed that the following amendments shall apply to the Shareholders Agreement with
effect from the date hereof:
| 1. | At the “Background” section in paragraph (B) after the words “and the Series E Investors”, the following shall be added: |
“and the Series G Investors”
| 2. | At Clause 1.1, the definition of “Investors” shall be amended so that the words “and/or Series G Investors” shall be added at the end thereof. | |
| 3. | In Clause 5, the reference to “US$90,000,000” shall be deleted and replaced with “US$105,000,000”. | |
| 4. | At Clause 6.7, a new Clause 6.7.6 should be added to state the following: |
“6.7.6 the issuance of Preference Shares to those Series G Investors set forth on Schedule A
to the Class G Preference Share Purchase Agreement dated December 4, 2009 and as amended (the
“Purchase Agreement”) pursuant to the terms of that certain Purchase Agreement.”
| 5. | Clause 7.2(c) shall be amended to read as follows: | |
| “The Series A Investors, the Series B Investors, the Series C Investors, the Series D Investors and the Series G Investors shall by majority vote be entitled to elect one Director while AsiaStar IT Fund L.P. continues to enjoy the right under Clause 7.2(b) to elect one Director, and shall be entitled to elect two Directors at such times as AsiaStar IT Fund L.P. no longer enjoy the rights to elect one Director under Clause 7.2(b).” | ||
| 6. | In Clause 7.3, the following shall be added as new Sub-Clause 7.3(b): | |
| “The Series G Investors shall be entitled to appoint a single observer for the purposes of meetings of the Board. Such observer shall be entitled to receive notices of such meetings pursuant to Clause 7.8 and the minutes thereof pursuant to Clause 7.11 subject to the observer’s confirming that they shall keep such information confidential and shall be subject to the some standard of duties as required by a Director in respect of its use of the same and provided further that such observer shall not be entitled to vote upon any matter considered at a board meeting and only contribute to the matters discussed at such meeting when invited to do so by a majority of the Board.” | ||
| 7. | Clause 11.2(g) shall be amended to read as follows: | |
| “The creation or issue of a new class of Shares having rights preference or privileges in parity with or in priority to the Series F or the Series G Preference Shares.” | ||
| 8. | At Clause 20.13.2, a reference to “Series G Investors” shall be added, at the end of such clause and, the following wording shall be added: |
Xxxxx Holdings LLC
|
00 Xxxxxx Xxxxxx Xxx Xxxx, XX 00000 XXX Facsimile: x0.000.000.0000 Email: xxxxxx@xxxxxxxxxx.xxx |
|
Xxxxxx X. Xxxxxx
|
000 0xx Xxxxxx, Xxxx 000 Xxx Xxxx, XX 00000 XXX Fax: x0.000.000.0000 Email: xxxxxxx@xxxxxxxxxx.xxx |
Fatboy Capital, LP
|
0000 Xxxxx X.X. Xxxxxxx 0 Xxxxx, Xxx 000 Xxxxxxxxx, Xxxxxxx 00000 XXX Facsimile: x0.000.000.0000 Email: xxxxxxxx@xxxxxxxxxxxxx.xxx |
|
Hyposwiss Private Bank Genève SA |
0 xxx xxx Xxxxx XX Xxx 0000 Xxxxxx, Xxxxxxxxxxx Facsimile: x00.00.000.00.00 Email: xxxxxxxx.xxxxxxx@xxxxxxxxx.xx |
|
Malcolm Xxxx Xxxxxxxx
|
000 Xxxxxxxx Xxxx Xxxxxxxxxx, Xxxxxx XX0 0XX Xxxxxx Xxxxxxx Facsimile: x00.00.0000.0000 Email: Xxxxxxx.Xxxxxxxx@xxxxxxxxx.xxx |
|
Nathalie Eliescaud
|
Flat 5, 00 Xxxxxxxxx Xxxxxxx XX00 0XX Xxxxxx, Xxxxxx Xxxxxxx Telephone: x00.000.000.0000 Email: xxxxxxxxxx@xxxxxxx.xxx |
|
Xxxx Xxxxxxxx
|
000 Xxxxxxxxx Xxxxx Xx Xxxxxx Xxxxxxxxxx, XX 00000 XXX Facsimile: x0.000.000.0000 Email: xxxx.xxxxxxxx@xxxxxx.xxx |
|
Avatam, LLC.
|
c/o Louis Makilow 000 Xxxxxxxx, Xxxxx 000 Xxxxxxxx Xxxxxxx, XX 00000 XXX Facsimile: x0.000.000.0000 Email: xxx@xxxxxxxxxxxxxx.xxx |
|
Xxxxxxxx Xxxxxx Xxxxx, Xx.
|
00 Xxxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxxx 00000 XXX Fax: x0.000.000.0000 Email: xxx@xxxxxxxx.xxx |
SG Private Banking (Suisse) XX
|
Xxx de la Corraterie 6 Case postale 5022 CH-1211 Xxxxxx 00, Xxxxxxxxxxx Fax: x00.00.000.00.00 Email: |
|
Fahad Al-Mutawa
|
XX Xxx 000, 00000 Xxxxx, Xxxxxx Fax: x000.0000.0000 Email: xxxxxxxx@xxxxxxx.xxx |
| 9. | At Schedule 2, the following shall be added at the end thereof: |
Xxxxx Holdings LLC |
Class G | 2,037.70 | ||||||
Xxxxxx X. Xxxxxx |
Class G | 1,273.56 | ||||||
Fatboy Capital, LP |
Class G | 1,500.00 | ||||||
Hyposwiss Bank |
Class G | 1,273.56 | ||||||
Xxxxxxx Xxxx Xxxxxxxx |
Class G | 425.37 | ||||||
Nathalie Eliescaud |
Class G | 1,273.56 | ||||||
Xxxx Xxxxxxxx |
Class G | 1,273.56 | ||||||
SG Private Banking (Suisse) SA |
Class G | 5,094.24 | ||||||
Avatam, LLC. |
Class G | 509.42 | ||||||
Fahad Al-Mutawa |
Class G | 509.42 | ||||||
Xxxxxxxx Xxxxxx Xxxxx, Xx. |
Class G | 509.42 | ||||||
| 10. | The parties all hereto acknowledge that a joinder agreement may be executed by the Company and such Series G Investors who purchase the Company’s New Shares after the date hereof, without the requirement that any of the current shareholders re-execute this Shareholders Agreement. Such joinder agreement will specify that the Series G Investors are a party to all of the rights and obligations set forth in the Shareholders Agreement. |
Save as set out herein, the Shareholders Agreement shall remain in full force and effect and
unamended.
In witness whereof the Parties have executed this Fourth Amendment Agreement on the date
abovementioned.
SIGNED BY |
) | |||
Xxxxx X. Xxxxx |
) | /s/ Xxxxx X. Xxxxx | ||
FOR AND ON BEHALF OF |
) | |||
| ) | [company seal] | |||
in the presence of Xxxxxx W.H.S. Yung |
) | /s/ Xxxxxx W.H.S. Yung | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXX XXXX |
) | /s/ Xxx Xxxx | ||
in the presence of Xx Xxx |
) | /s/ Xx Xxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXX XXX XXXXX XXXXX |
) | /s/ Xxx Xxx Xxxxx Xxxxx | ||
in the presence of Xxxxxx W.H.S. Yung |
) | /s/ Xxxxxx W.H.S. Yung | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXX XXXX XXXXX |
) | /s/ Xxxxx Xxxx Xxxxx | ||
in the presence of Xxxxxx W.H.S. Yung |
) | /s/ Xxxxxx W.H.S. Yung | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXX XXXX XXXXX |
) | /s/ Xxxx Xxxx Xxxxx | ||
in the presence of Xxxxxx Xxx |
) | /s/ Xxxxxx Xxx |
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXX XXXXXXXXX XXXXX |
) | /s/ Xxxxx Xxxxxxxxx Xxxxx | ||
in the presence of Edouaro Xxxxx |
) | /s/ Edouaro Xxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXXXXX XXXXXX XXXXX XX. |
) | /s/ Xxxxxxxx Xxxxxx Xxxxx Xx. | ||
in the presence of Xxxxx X. Xxxxx |
) | /s/ Xxxxx X. Xxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
AYAZ XXXXX XXXXXXX |
) | /s/ Ayaz Xxxxx Xxxxxxx | ||
in the presence of Xxxxx Xxx Man |
) | /s/ Xxxxx Xxx Man | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxxx Xxxxx Xxxxx Xx. |
) | /s/ Xxxxxx Xxxxx Xxxxx Xx. | ||
XXXXX HOLDINGS LLC |
) | |||
in the presence of Xxxxxx Xxxx |
) | /s/ Xxxxxx Xxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXXXXX XXXXXX XXXXX III |
) | /s/ Xxxxxxxx Xxxxxx Xxxxx III | ||
in the presence of Xxxx Xxxxx |
) | /s/ Xxxx Xxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
RUPERT XXXXX XXXXXX |
) | /s/ Rupert Xxxxx Xxxxxx | ||
in the presence of Xxxxx Xxxx |
) | /s/ Xxxxx Xxxx |
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXX XXXXXX XXXXXXX |
) | /s/ Xxxx Xxxxxx Xxxxxxx | ||
in the presence of Xxxx Xxxxxxxx |
) | /s/ Xxxx Xxxxxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
YANG CHA |
) | /s/ Yang Cha | ||
in the presence of Xxxx Xxx |
) | /s/ Xxxx Xxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxx Xxx |
) | /s/ Xxxxx Xxx | ||
FOR AND ON BEHALF OF |
) | |||
ASIASTAR IT FUND, L.P. |
) | |||
in the presence of Serena He |
) | /s/ Serena He | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXX XXX FAN |
) | /s/ Xxx Xxx Fan | ||
in the presence of Xxxx Xxx |
) | /s/ Xxxx Xxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxx Xx-Xxxxx |
) | /s/ Xxxxx Xx-Xxxxx | ||
FOR AND ON BEHALF OF |
) | |||
UNI-ASIA LIMITED |
) | |||
in the presence of Xxxxxx Xxxx |
) | /s/ Xxxxxx Xxxx |
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxxxx Xxxxxxxxx |
) | /s/ Xxxxxxx Xxxxxxxxx | ||
FOR AND ON BEHALF OF |
) | |||
HARMIR REALTY CO, LP |
) | |||
in the presence of Xxxx Xxxxxxxxx |
) | /s/ Xxxx Xxxxxxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxxxx Xxxxxxxxx |
) | /s/ Xxxxxxx Xxxxxxxxx | ||
FOR AND ON BEHALF OF |
) | |||
XXXXXXX X. XXXXXXXXX & CO., INC. PROFIT |
) | |||
SHARING TRUST |
) | |||
in the presence of Xxxx Xxxxxxxxx |
) | /s/ Xxxx Xxxxxxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxxxxxx Xx-Xxxxxx |
) | /s/ Xxxxxxxxx Xx-Xxxxxx | ||
FOR AND ON BEHALF OF |
) | |||
SALHIA REAL ESTATE COMPANY K.S.C. |
) | |||
in the presence of Xxxxx Xxxxx |
) | /s/ Xxxxx Xxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXX XX-XXXXXX |
) | /s/ Xxxxx Xx-Xxxxxx | ||
in the presence of Xxxxx Xxxxx |
) | /s/ Xxxxx Xxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
ANWER A.D.A ALUSAIMI |
) | /s/ Xxxxx X.X.X. Alusaimi | ||
in the presence of Xxxxxxxxx Xx-Xxxxxx |
) | /s/ Xxxxxxxxx Xx-Xxxxxx |
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXXXXXX XX-XXXXXX |
) | /s/ Xxxxxxxxx Xx-Xxxxxx | ||
in the presence of Xxxxx Xxxxx |
) | /s/ Xxxxx Xxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXX XXXXXXXX |
) | /s/ Xxxx Xxxxxxxx | ||
in the presence of Xxxxxxx Xxxx |
) | /s/ Xxxxxxx Xxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxx Xxxxxxxx |
) | /s/ Xxxx Xxxxxxxx | ||
SWAN STREET PARTNERS, LLP |
) | |||
in the presence of Xxxxxxx Xxxx |
) | /s/ Xxxxxxx Xxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXXX X. XXXXXX |
) | /s/ Xxxxxx X. Xxxxxx | ||
in the presence of Xxxxxxxxx Xxxx |
) | /s/ Xxxxxxxxx Xxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxx Xxxxxxx |
) | /s/ Xxxxx Xxxxxxx | ||
FATBOY CAPITAL, LP |
) | |||
in the presence of Xxxxxxx Xxxxxxxxx |
) | /s/ Xxxxxxx Xxxxxxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
NATHALIE ELIESCAUD |
) | /s/ Nathalie Eliescaud | ||
in the presence of Xxxxxx Xxxx |
) | /s/ Xxxxxx Xxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXX XXXX XXXXXXXX |
) | /s/ Xxxx Xxxx Xxxxxxxx | ||
in the presence of Segolene Goillerez |
) | /s/ Segolene Goillerez |
SIGNED SEALED AND DELIVERED BY |
) | |||
XXXXXXX XXXX XXXXXXXX |
) | /s/ Xxxxxxx Xxxx Xxxxxxxx | ||
in the presence of Xxxxxxxxx Xxxx |
) | /s/ Xxxxxxxxx Xxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxxxx Xxxx |
) | /s/ Xxxxxxx Xxxx | ||
SG PRIVATE BANKING (SUISSE) SA |
) | |||
in the presence of Xxxxxxx Xxxxxxxxxxx |
) | /s/ Xxxxxxx Xxxxxxxxxxx | ||
SIGNED SEALED AND DELIVERED BY |
) | |||
Olivier Bunrus; Xxxxxxxx Xxxxxxx |
) | /s/ Olivier Bunrus; Xxxxxxxx Xxxxxxx | ||
HYPOSWISS PRIVATE BANK GENÈVE SA |
) | |||
in the presence of |
) | |||
SIGNED SEALED AND DELIVERED BY |
) | |||
Xxxxx X. Xxxxxxx |
) | /s/ Xxxxx X. Xxxxxxx | ||
AVATAM, LLC. |
) | |||
in the presence of Grphy A Franky |
) | /s/ Grphy A Franky | ||
SIGNED SEALED AND DELIVERED BY) |
||||
FAHAD AL-MUTAWA |
) | /s/ Fahad Al-Mutawa | ||
in the presence of CadGG |
) | /s/ CadGG |
Schedule A
The Series G Investors
| Number of Class G Preference Shares | Investor | |
1,273.56
|
Nathalie Eliescaud | |
2,037.70
|
Xxxxx Holdings LLC | |
1,273.56
|
Xxxxxx X. Xxxxxx | |
1,500.00
|
Fatboy Capital, LP | |
1,273.56
|
Hyposwiss Private Bank Genève SA | |
425.37
|
Xxxxxxx Xxxx Xxxxxxxx | |
1,273.56
|
Xxxx Xxxxxxxx | |
5,093.24
|
SG Private Banking (Suisse) SA | |
509.42
|
Avatam, LLC. | |
509.42
|
Fahad Al-Mutawa | |
509.42
|
Xxxxxxxx Xxxxxx Xxxxx, Xx. |
