EXHIBIT 4.5
LINKTONE LTD.
(the "COMPANY")
EXCERPT FROM WRITTEN RESOLUTIONS OF THE SHAREHOLDERS OF THE
COMPANY AND
AGREEMENT BETWEEN THE SHAREHOLDERS OF THE COMPANY AND THE
COMPANY
DATED 13 DECEMBER 2002
This instrument is an agreement by the Company and the shareholders of
the Company to amend the Shareholders Agreement in respect of the Company, dated
November 19, 2001 (the "SHAREHOLDERS AGREEMENT").
1. AMENDMENT OF SHAREHOLDERS AGREEMENT
Section 4.1(c) of the Shareholders Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) The Board of Directors shall consist of up to six (6)
directors appointed as follows:
(i) Founding Shareholders Directors: The Founding
Shareholders shall be entitled to appoint two
Directors, one of whom shall be appointed by Lunar
Occidental Group LLC, and one of whom shall be
appointed by a majority vote of Xxx Xx, Xxx Xxxxxxx
and Xxxx Xxxxxx.
(ii) Temasek (Hong Lim Investments Pte. Ltd.) Director:
Temasek shall be entitled to appoint one Director
until such time as Temasek has sold or otherwise
disposed of more than 50% of the Shares owned by
Temasek as of the Closing Date (November 19, 2001);
provided, however, that it own in the aggregate a
Voting Shareholding Percentage in excess of 1%.
(iii) Linktone Ltd. Officer: The Chief Executive Officer of
Linktone Ltd. shall be entitled to serve as a
Director.
(iv) Acer (IP Fund One, L.P.) Director: Acer shall be
entitled to appoint one Director until such time as
Acer has sold or otherwise disposed of more than 50%
of the Shares owned by it as of the Closing Date.
(v) Mitsubishi and Index Director: Mitsubishi and Index
together shall be entitled to occupy 1 non-voting
Board Observer Seat but can exchange the non-voting
Board Observer Seat and appoint one director at any
time until such time as Mitsubishi and/or Index has
sold or otherwise disposed in the aggregate more than
50% of total shares owned by Mitsubishi and Index as
of the Closing Date; provided, however, that
Mitsubishi and Index own in the aggregate a Voting
Shareholding Percentage in excess of 1%.
(vi) Vacated director seats resulting from any decline in
the number of directors which Temasek or Acer are
entitled to appoint shall be filled by nominees
selected by a majority of the directors on the Board
of Directors (excluding the departing director) and
elected by holders of a majority of the then
outstanding voting Shares."
Section 4.3(a) of the Shareholders Agreement is hereby amended and
restated in its entirety to read as follows:
"The quorum necessary for the transaction of the business of the Board
of Directors shall be four directors for so long as the Board of Directors
comprises six directors and shall be three directors for so long as the Board of
Directors comprises not more than five directors, and, in both instances, shall
include (i) at least one director appointed by the Founding Shareholders; (ii)
one director appointed by Acer, if Acer is then entitled to appoint a director;
and (iii) one director appointed by Temasek, if Temasek is then entitled to
appoint a director. If a quorum cannot be achieved within the first hour after
any scheduled Board of Directors meeting, the meeting shall be adjourned and the
parties shall reschedule the next meeting within 30 days in good faith pursuant
to Section 4.2 above and the directors shall be obligated to participate in such
rescheduled meeting in good faith."
The first paragraph of Section 4.4 is hereby amended and restated to
read as follows:
"The Company shall not, and shall cause the Linktone Entities not to,
take any action in connection with any of the following transactions, unless
such transaction shall have been approved by a majority of the directors of the
Board of Directors (such approval not to be unreasonably withheld by any
director), including (i) the affirmative vote of the Acer director, if Acer is
then entitled to appoint a director; and (ii) the affirmative vote of the
Temasek director, if Temasek is then entitled to appoint a director; and (iii)
the affirmative vote of at least one of the Founding Shareholder directors:"
Except as set forth in this amendment, all other terms and conditions of the
Shareholders Agreement shall remain in full force and effect.
5. GENERAL AUTHORIZATION AND RATIFICATION
IT IS UNANIMOUSLY RESOLVED THAT the authorized officers of the Company
be, and each of them hereby is, authorized, instructed and directed, for and on
behalf of the Company, to cause to be prepared, executed and delivered such
documents, to file all instruments, to perform such acts, and to incur such
expenses, all as may be necessary or appropriate to effect the intent of the
foregoing resolutions; and
IT IS UNANIMOUSLY RESOLVED THAT any acts of any of the officers or
directors of the Company, or any person or persons designated and authorized to
act by any of them, which acts were taken prior to the adoption of the foregoing
resolutions except that such acts were taken prior to the adoption of those
resolutions, are hereby severally ratified, confirmed, approved and adopted as
acts in the name of and on behalf of the Company.
This instrument may be executed in one or more counterparts each of
which shall be deemed an original but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF,
Series B Preferred Shareholders: IP FUND ONE, L.P.
By: /s/ York Chen
----------------------------
York Chen
Series C Preferred Shareholders: INTRINSIC TECHNOLOGY (HOLDINGS) LTD.
By: /s/ Ming Sui
----------------------------
Ming Sui
Chief Executive Officer
Series D Preferred Shareholders: MITSUBISHI CORPORATION
By: /s/ Motohiko Nakamwara
\ ----------------------------
Motohiko Nakamwara
General Manager, eCommerce Unit
IT Projects Division
INDEX CORPORATION
By: /s/
----------------------------
Series E Preferred Shareholders: HONG LIM INVESTMENTS PTE. LTD.
By: /s/ Glarn Xxx Xxxx
----------------------------
Company Secretary
Founding Shareholders: XXX XX
/s/ Xxx Xx
----------------------------
XXX XXXXXXX
/s/ Xxx Xxxxxxx
----------------------------
XXXX XXXXXX
/s/ Xxxx Xxxxxx
----------------------------
LUNAR OCCIDENTAL GROUP LLC
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Director
Series A Preferred Shareholders: ICON VENTURES ASIA LIMITED
By: /s/
----------------------------
Name:
Title:
Xxxx Xxxxxx
Xxxxx Xxx
Xxx Xxxxx
Xxxxx Xxxxx
Xxx Xxxxx
Hiking Corporation Ltd.
Greenacre Ventures Ltd.
Orford Finance
Xxxxxx, Xxxx
Naqi, Zain
Simev Ltd.
Xxx, Xxxxxxxx H(aifeng)
Attali and Associates Venture
Bouaoudia, Xxxxx
Xxxx, Xxxxxx
Xxxxxxxx, Per
Satrap, Alrieza
Hu, An Xxx
Xxxxxxx, Xxxxx
Xxxxx, Xxxxxxx
Xxxxxx, Xxxxxx
Xxxxxx, Xxxxxx
Xxxxx, Xxx
Xxxxxxx, Xxxxxx
Xxxxxx, Xxxx
Xxxx, Xxxxxx
Xxxxxx, Xxxxx
Xx, Xxxx
Xxxxxx, Xxxx
Xxx, Xxxxxx
Xxxxxxxx, Xxxxxx
Icon Ventures Asia Ltd.
Xxx, Xxxxx
Xxxx, Xxxxx
Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxx
Xxxxx, Xxxxx
Xxxxxxxxx, Xxxx
Lunar Occidental LLC
Xxxxxx, Xxxx
Xxxxx, Xxxxxx
Chalkstripe Consultants Ltd.
XxXxxxxxxx, Xxxx
Xxxxx, Xxxxxx
Xxxxxx, Xxxxxx
Atlantic Portfolio Management
Xxxxx, Xxxxxx
Xxxxxxxxx, Xxxxxx
Xxxxxx, Xxxx
WPP Global ESOP (HSBC Trustee CI Ltd)
Xxxxxx, Xxxxxxx
Langmuir, Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx
Xxxxxx, Xxxxxx
XxXxxx, Xxxxxxx
Xxx Xxxxxx, Lieven
Xxxxxxxx, Xxxxxxx X
Xxxxxx, Xxxxx
Rosebud Securities Ltd.
Xxxxxx, Xxxxxx
Xxxxxxx, Xxxxx
Klammers, Xxxx
Xxxxxxxx, Xxxxxxx
Xxxxxx Xx, Xxxxxx X.
Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxx
Xxxxxx, Xxxxxxx
Xxxxxx Xx, Xxxxxx
Gennotte, Xxxxxx
Xxxxx, Xxxxxxx
Xxxxxx, Xxx
Xxxx, Xxxx
Xxxx, Xxxxxx
Xxxxx, Xxxxx
Xxxxxxxx, Xxxx
Xxxxxxxx, Xxxxxxx
Xxxx, Xxxxxxx X.
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx
Attorney-in-Fact
As to Section 1 of the foregoing instrument:
LINKTONE LTD.
By: /s/ Xxxx Xxxxx
----------------------------
Xxxx Xxxxx
Chief Executive Officer
