FIFTH SHAREHOLDERS AMENDMENT AGREEMENT
Exhibit 4.3.13
FIFTH SHAREHOLDERS AMENDMENT AGREEMENT
Dated 12 February 2010
This Fifth Amendment Agreement is entered into between the parties signing below (each a “Party”
and together “Parties”) 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, a
Third Amendment dated June 2008 and a Fourth Amendment dated 9 December 2009 and entered into
between the Parties (or their predecessors-in-title) (hereinafter “Shareholders Agreement”).
Terms and Expressions defined in the Shareholders Agreement shall, save where amended by the terms
of this Fifth Amendment Agreement, have the same meaning herein. References to clause numbers
shall mean the clause with such number in the Shareholders Agreement.
BACKGROUND
| (A) | The Shareholders Agreement was entered into to govern the terms of holding shares in the Company whilst it was a private company. | |
| (B) | Upon the date of this Fifth Amendment Agreement to the Shareholders Agreement the Company is in the process of undertaking an initial public offering (the “Contemplating IPO”). | |
| (C) | It is therefore the intention of the Parties to terminate the provisions of the Shareholders Agreement upon the Contemplating IPO save insofar as is specifically provided for herein. |
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 completion of the Contemplating IPO:
| 1. | At Clause 1.1 the expressions “Business”, “ESOP”, “Fair Value”, “Incapacitating Event”, “Nominee”, “Shareholding Percentage” and “Supermajority” shall be deleted together with their corresponding meanings; and the definition of “Party” shall be superseded by the definition thereof provided in the first paragraph of this Fifth Amendment Agreement). | |
| 2. | At Clause 2 “The Business”, Clause 3 “Rights of First Refusal”, Clause 4 “Co-Sale Right”, Clause 5 “Drag-Along Right”, Clause 6 “Pre-emption Right”, Clause 7 “Board of Directors”, Clause 8 “Directors”, Clause 9 “Shareholders Meeting”, Clause 10 “Administration”, Clause 11 “Director and Director Voting”, Clause 13 “Incapacitation of Shareholders”, Clause 14 “Finances”, |
| Clause 15 “Stock Options”, Clause 16 “Dividend Policy and Reserves” Clause 17 “Event of Default” and Clause 18 “Co-Operation” the text contained therein shall be deleted and each shall be replaced with the words “Intentionally left blank”. | ||
| 3. | At Clause 12: | |
| 3.1 | All references to “Holders” shall be amended to “holders” and all references to “Registrable Securities” shall be amended to “registrable securities”; | |
| 3.2 | At Clause 12.1 (i) the words “In addition to the other rights of the Investors pursuant to the Articles and/or herein contained with effect from the earlier of (i) the second anniversary of the date hereof and (ii)” shall be deleted and substituted with the word “Effective”. | |
| 3.3 | At Clause 12.1 (iii), after the words “Prior to ...” the following words shall be deleted “the earlier of (1) the second anniversary of the date hereof or (2)”; and | |
| 3.4 | Clause 12.5 and 12.6 shall be deleted in their entirety. | |
| 4. | At Clause 20.13.2 the following wording shall be added:- | |
| 4.1 | the address of Xxxxxx Xxxxxxx Xxxx-San Yung shall be deleted and substituted with the following:- | |
| Address: 0X, 0 Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxx Xxxx | ||
| 4.2 | the address of Xxxxx Xxxx Xxxxx shall be deleted and substituted with the following: | |
| Address: Xxxxx 00, Xxxxx Xxxxx, 00 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxxx Xxx, Xxxx Xxxx | ||
| 5. | This Fifth Amendment Agreement shall be governed by and constructed in accordance with the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) and the Parties respectively submit to the non-exclusive jurisdiction of the Hong Kong courts in respect of any dispute or claim resulting from the terms hereof. |
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 Fifth Amendment Agreement on the date
abovementioned.
SIGNED BY
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) | |||||
Xxxxx X. Xxxxx
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) | /s/ Xxxxx X. Xxxxx | ||||
FOR AND ON BEHALF OF
|
) | |||||
| ) | ||||||
in the presence of Xxxxxx Xxxx
|
) | /s/ Xxxxxx Xxxx | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
XXX XXXX
|
) | /s/ Xxx Xxxx | ||||
in the presence of Vidy
|
) | /s/ Vidy | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXX XXX XXXXX XXXXX
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) | /s/ Xxx Xxx Xxxxx Xxxxx | ||||
in the presence of Xxxxx X. Xxxxx
|
) | /s/ Xxxxx X. Xxxxx | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
XXXXX XXXX XXXXX
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) | /s/ Xxxxx X. Xxxxx | ||||
in the presence of Xxxxxx Xxxx
|
) | /s/ Xxxxxx Xxxx | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
XXXX XXXX XXXXX
|
) | /s/ Xxxx Xxxx Xxxxx | ||||
in the presence of Xxxxxx Xxx
|
) | /s/ Xxxxxx Xxx | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
XXXXX XXXXXXXXX XXXXX
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) | /s/ Xxxxx Xxxxxxxxx Xxxxx | ||||
in the presence of Xxxxxx Xxx
|
) | /s/ Xxxxxx Xxx |
SIGNED SEALED AND DELIVERED BY
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) | |||||
XXXXXXXX XXXXXX XXXXX XX.
|
) | /s/ Xxxxxxxx Xxxxxx Xxxxx Xx. | ||||
in the presence of Xxxxxxx Xxxxx
|
) | /s/ Xxxxxxx Xxxxx | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
AYAZ XXXXX XXXXXXX
|
) | /s/ Ayaz Xxxxx Xxxxxxx | ||||
in the presence of Xxxx Xxx Mon
|
) | /s/ Xxxx Xxx Mon | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
Xxxxxx Xxxxx Xxxxx Xx. FOR AND ON BEHALF OF |
) ) |
/s/ Xxxxxx Xxxxx Xxxxx Xx. | ||||
XXXXX HOLDINGS LLC
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) | |||||
in the presence of Xxxxxxx Xxxxxxxx
|
) | /s/ Xxxxxxx Xxxxxxxx | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
XXXXXXXX XXXXXX XXXXX III
|
) | /s/ Xxxxxxxx Xxxxxx Xxxxx III | ||||
in the presence of
|
) | |||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
RUPERT XXXXX XXXXXX
|
) | /s/ Rupert Xxxxx Xxxxxx | ||||
in the presence of Xxxxx Xxxxxx
|
) | /s/ Xxxxx Xxxxxx | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
XXXX XXXXXX XXXXXXX
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) | /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
|
) | |||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
Xxxxx Xxx
|
) | /s/ Xxxxx Xxx | ||||
FOR AND ON BEHALF OF
|
) | |||||
ASIASTAR IT FUND, L.P.
|
) | |||||
in the presence of Xxxx Xxx
|
) | /s/ Xxxx Xxx | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXX XXX FAN
|
) | /s/ Xxx Xxx Fan | ||||
in the presence of Xxx Xxx Lo
|
) | /s/ Xxx Xxx Lo | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
Xxxxx Xx-Xxxxx
|
) | /s/ Xxxxx Xx-Xxxxx | ||||
FOR AND ON BEHALF OF
|
) | |||||
UNI-ASIA LIMITED
|
) | |||||
in the presence of Barack
|
) | /s/ Barack | ||||
SIGNED SEALED AND DELIVERED BY
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) | |||||
Tell Xxxx Laud Pres Kded
|
) | /s/ Tell Xxxx Laud Pres Kded | ||||
FOR AND ON BEHALF OF
|
) | |||||
HARMIR REALTY CO, LP
|
) | |||||
in the presence of Card Le Krumcaud
|
) | /s/ Card Le Krumcaud |
SIGNED SEALED AND DELIVERED BY
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) | |||||
Xxxxxxx Xxxxxxxxx
|
) | /s/ Xxxxxxx Xxxxxxxxx | ||||
FOR AND ON BEHALF OF
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) | |||||
XXXXXXX X.XXXXXXXXX & CO., INC
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) | |||||
PROFIT SHARING TRUST
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) | |||||
in the presence of Xxxxxxx Xxxxxxxxxx
|
) | /s/ Xxxxxxx Xxxxxxxxxx | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
Xxxxx Xx-Xxxxxx
|
) | /s/ Xxxxx Xx-Xxxxxx | ||||
FOR AND ON BEHALF OF
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) | |||||
SALHIA REAL ESTATE COMPANY) |
||||||
K.S.C.
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) | |||||
in the presence of
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) | |||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXXXX XX-XXXXXX
|
) | /s/ Xxxxx Xx-Xxxxxx | ||||
in the presence of
|
) | |||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXXXX X.X.X. ALUSAIMI
|
) | /s/ Xxxxx X.X.X. Alusaimi | ||||
in the presence of
|
) | |||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
ABDULAZIA XX-XXXXXX
|
) | /s/ Abdulazia Xx-Xxxxxx | ||||
in the presence of
|
) | |||||
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 | ||||
FOR
AND ON BEHALF OF
|
) | |||||
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 | ||||
FOR
AND ON BEHALF OF
|
) | |||||
FATBOY CAPITAL, LP
|
) | |||||
in the presence of Drma Wersg
|
) | /s/ Drma Wersg | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXXXXXX XXXX XXXXXXXX
|
) | /s/ Xxxxxxx Xxxx Xxxxxxxx | ||||
in the presence of Ourer Dmbargs
|
) | /s/ Ourer Dmbargs | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
X. Xxxxxxx X. Xxxx
|
) | /s/ X. Xxxxxxx X. Xxxx | ||||
FOR
AND ON BEHALF OF
|
) | |||||
SG PRIVATE BANKING (SUISSE) SA
|
) | |||||
in the presence of X. Xxxx
|
) | /s/ X. Xxxx |
SIGNED SEALED AND DELIVERED BY
|
) | |||||
J.-X. Xxxxxxxxx Walfgang Xxxxxxx
|
) | /s/ J.-X. Xxxxxxxxx Walfgang Xxxxxxx | ||||
FOR
AND ON BEHALF OF
|
) | |||||
HYPOSWISS PRIVATE BANK
|
) | |||||
GENÈVE SA
|
) | |||||
in the presence of
|
) | |||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
Xxxxx X. Xxxxxxx
|
) | /s/ Xxxxx X. Xxxxxxx | ||||
FOR
AND ON BEHALF OF
|
) | |||||
AVATAM, LLC.
|
) | |||||
in the presence of Xxxxxxx Xxxxxxx
|
) | /s/ Xxxxxxx Xxxxxxx | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
FAHAD AL-MUTAWA
|
) | /s/ Fahad Al-Mutawa | ||||
in the presence of
|
) | |||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXXXX XXX
|
) | /s/ Xxxxx Xxx | ||||
in the presence of Xxxx Xxx
|
) | /s/ Xxxx Xxx | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXXXX XXXX
|
) | /s/ Xxxxx Xxxx | ||||
in the presence of Xxxx Xxx
|
) | /s/ Xxxx Xxx | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
XXXX XXXXX XXXXXXX
|
) | /s/ Xxxx Xxxxx Xxxxxxx | ||||
in the presence of Syxue Xxxx Xxxxx
|
) | /s/ Syxue Xxxx Xxxxx |
SIGNED SEALED AND DELIVERED BY
|
) | |||||
NATHALIE ELIESCAUD
|
) | /s/ Nathalie Eliescaud | ||||
in the presence of Andre Euescaud
|
) | /s/ Andre Euescaud | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
THE GLADIATOR FUND
|
) | [company seal] | ||||
in the presence of Seul Chan
|
) | /s/ Seul Chan | ||||
SIGNED SEALED AND DELIVERED BY
|
) | |||||
LOTUS EQUITY INCOME FUND LIMITED
|
) | [company seal] | ||||
in the presence of Seul Chan
|
) | /s/ Seul Chan |
