Second Amendment Agreement between Xdlong International Company Limited as Company Elevatech Limited as Investor and Mr Lin Shuipan as Founder Shareholder relating to
DATED: 2
June 2008
Hong
Kong/020/063588-00001/JDH/PYYL:
L_LIVE_APAC1:549229v3
L_LIVE_APAC1:549229v3
Second
Amendment Agreement
between
Xdlong
International Company Limited
as
Company
Elevatech
Limited
as
Investor
and
Xx Xxx
Shuipan
as Founder
Shareholder
relating
to
a Subscription 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:
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(1)
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XDLONG
INTERNATIONAL COMPANY LIMITED, (“Company”),
registered in the Cayman Islands having company number CT-207339 and
having its registered office at Cricket Square, Xxxxxxxx Drive, P.O. Box
2681, Grand Cayman KY1-1111, Cayman
Islands;
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(2)
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ELEVATECH
LIMITED,
(“Investor”), a
company incorporated in Hong Kong and having its registered office at
68th
Floor, Xxxxxx Kong Center, 0 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx;
and
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(3)
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XX
XXX SHUIPAN (“Founder
Shareholder”), holder of PRC passport number X00000000 of Xx. 000,
Xxxxxxxxxxxx Xxxx, Xxxxxxxxxx Village, Chendai Town, Jinjiang City, Fujian
Province, PRC.
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BACKGROUND:
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A.
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The
parties to this Agreement (“Parties”)
are parties to a subscription 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 (“Subscription
Agreement”).
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IN
CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT THE PARTIES
AGREE as
follows:
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1.
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Interpretation
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1.1
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The
terms of clauses 1.1 and 1.2 of the Subscription Agreement shall apply to
this Agreement with such changes as are
necessary.
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2.
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Amendments to the
Subscription Agreement
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2.1
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With
effect from the date of this Agreement, the Subscription Agreement is
further amended by:
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(A)
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deleting
the original clause 5.5(B) of the Subscription Agreement in its entirety
and replacing
by the following
new clause 5.5(B):
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“(B)
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The
Founder Shareholder can 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:
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(1)
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a
listing is granted by a Stock Exchange;
and
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(2)
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in
the determination of the indicative price range for the proposed
IPO,
the Founder Shareholder becomes 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)
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deleting
the words “, on a Pro-rata Basis and on a several basis,” on the
second
and
third lines of clause 5.5(C) of the Subscription
Agreement;
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1
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(C)
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deleting
the original paragraph 9.3 in schedule 2 – Adjustment of
Consideration of
the
Subscription Agreement in its entirety and replacing by the following
new
paragraph
9.3:
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“9.3
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If,
prior to a Qualified IPO, there is any shortfall between the number of
Shares that are held and transferable by the Founder Shareholder to the
Investor at the time of an Adjustment Event and the number of Shares the
Founder 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 Founder Shareholder 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 Founder Shareholder shall mean those Shares of the Founder Shareholder
which are not subject to any disposal restriction under any applicable
rules or regulations of the Stock
Exchange.”;
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(D)
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deleting
the original paragraph 10.1 in schedule 2 – Adjustment of
Consideration of
the
Subscription Agreement in its entirety and replacing by the following
new
paragraph
10.1:
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“10.1
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The
Investor shall have a right to elect, by notice in writing to the Founder
Shareholder, 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 Founder Shareholder in lieu of the
Founder Shareholder transferring the Adjustment Shares, the Further
Adjustment Shares or the IPO Adjustment Shares (as the case may
be).
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(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
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X
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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.
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(B)
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The
cash payable upon occurrence of an Adjustment Event pursuant to paragraph
11 shall be calculated as
follows:
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Cash
payment
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=
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the
number of IPO Adjustment
Shares X IPO
Price”;
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(E)
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immediately
following the last sentence of paragraph 10.2 in schedule 2 –
Adjustment of Consideration of the Subscription Agreement, insert the
following:
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2
“For the
avoidance of doubt, the word “transferable” when used in this paragraph 10.2 in
relation to Shares of the Founder Shareholder shall mean those Shares of the
Founder Shareholder 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 Subscription 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 Subscription 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 Subscription Agreement before the date of this
Agreement; or
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(B)
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discharges,
releases or otherwise affects any liability or obligation arising under
the Subscription Agreement before the date of this
Agreement.
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4.
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General
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4.1
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The
terms of clauses 13.2, 13.5, 13.7 and 13.8 of the Subscription 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
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The
terms of clause 15 of the Subscription 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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3
AS
WITNESS the hands of the Parties or their duly authorised representatives
the day and year first above written.
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Xx
Xxx Shuipan
duly
authorised for and on
behalf
of XDLONG
INTERNATIONAL
COMPANY
LIMITED
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)
)
)
)
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 |
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SIGNED
by XX XXX
SHUIPAN
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)
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 |
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SIGNED
by Mr Xxxxx Xxxxx
duly
authorised for and on
behalf
of the ELEVATECH
LIMITED
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)
)
)
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4
AS
WITNESS the hands of the Parties or their duly authorised representatives
the day and year first above written.
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Xx
Xxx Shuipan
duly
authorised for and on
behalf
of XDLONG
INTERNATIONAL
COMPANY
LIMITED
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)
)
)
)
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SIGNED
by XX XXX
SHUIPAN
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)
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SIGNED
by Mr Xxxxx Xxxxx
duly
authorised for and on
behalf
of the ELEVATECH
LIMITED
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)
)
)
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4
