REGISTRATION RIGHTS AGREEMENT
Exhibit 10.96
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of March 28,
2007 by and among Focus Media Holding Limited, a company with limited liability organized under the
laws of the Cayman Islands (the “Company”), each of
the Persons listed on Schedule A who represent certain
former shareholders, warrant holders and option holders (or entities controlled thereby) of Allyes
Information Technology Company Limited (“Allyes”), a company with limited liability organized under
the laws of the Cayman Islands (the “Allyes Holders” and, individually, an “Allyes Holder”).
RECITALS
A. The Allyes Holders have agreed to sell (or cancel, in the case of option holders and
warrant holders) all of their respective equity interests in Allyes to the Company, and as part of
the consideration, the Company has agreed to issue to each Allyes Holder, certain Ordinary Shares
(as defined below) of the Company on the terms and conditions set forth in that certain Share
Purchase Agreement dated as of February 28, 2007 (the “Allyes Purchase Agreement”) by and among the
Company, Allyes, the Allyes Holders and certain other parties thereto.
B. In connection with the consummation of the transactions contemplated by the Allyes Purchase
Agreement, the parties hereto desire to enter into this Agreement to enable the Allyes Holders from
time to time to register the Ordinary Shares that they receive pursuant to the Allyes Purchase
Agreement under the Securities Act (as defined below).
C. The Allyes Purchase Agreement provides that the execution and delivery of this Agreement by
the parties hereto shall be a condition precedent to the consummation of the transactions
contemplated thereunder.
D. The Company and the Allyes Holders seek to induce the Allyes Holders to consummate the
transactions contemplated in the Allyes Purchase Agreement, and to such ends, seek to satisfy the
conditions precedent to such transactions by entering into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises hereinafter
set forth, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto further agree as follows:
SECTION 1 INTERPRETATION
1.1 Definitions. Unless otherwise defined in this Agreement, capitalized terms used
in the English version of this Agreement shall have the following meanings:
“Accounting Principles” means generally accepted accounting principles as applied in
the United States of America.
“ADSs” means American depositary shares with each ADS as of the date of this Agreement
representing ten Ordinary Shares.
“Affiliate” means, with respect to any given Person, a Person that Controls, is
Controlled by, or is under common Control with the given Person.
“Agreement” has the meaning ascribed thereto in the preamble hereto.
“Allyes Ancillary Documents” means this Agreement and the Allyes Lock-Up Agreements.
“Allyes Holders” has the meaning ascribed thereto in the preamble hereof.
“Allyes Lock-Up Agreements” means those certain Lock-Up Agreements, dated the date of
the closing of the transactions contemplated by the Allyes Purchase Agreement, by and among
the Company and each of the Allyes Holders.
“Allyes Purchase Agreement” has the meaning ascribed thereto in the recitals hereof.
“Allyes Registrable Securities” means (i) the Ordinary Shares received or to be
received by the Allyes Holders pursuant to the Allyes Purchase Agreement, including any
Earn-Out Shares, (including any ADSs related thereto) and (ii) any Equity Securities of the
Company issued as (or issuable upon the conversion or exercise of any Ordinary Share
Equivalent) a dividend or other distribution with respect to, or in exchange for, or in
replacement of, the shares referenced in clause (i).
“Applicable Securities Law” means (i) with respect to any offering of securities in the
United States of America, or any other act or omission within that jurisdiction, the
securities law of the United States, including the Exchange Act and the Securities Act, and
any applicable law of any State of the United States, and (ii) with respect to any offering
of securities in any jurisdiction other than the United States of America, or any related
act or omission in that jurisdiction, the applicable laws of that jurisdiction.
“Business Day” means any weekday that the banks in the PRC, Hong Kong and the United
States of America are generally open for business.
“Centre” has the meaning ascribed thereto in Section 4.3(c).
“Commission” means (i) with respect to any offering of securities in the United States
of America, the Securities and Exchange Commission of the United States or any other federal
agency at the time administering the Securities Act, and (ii) with respect to any offering
of securities in a jurisdiction other than the United States of America, the regulatory body
of the jurisdiction with authority to supervise and regulate the sale of securities in that
jurisdiction.
“Company” has the meaning ascribed thereto in the preamble hereto.
“Control” means, when used with respect to any Person, the power to direct the
management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms “Controlling” and
“Controlled” have meanings correlative to the foregoing.
“Depositary” means the depositary in respect of the Company’s ADSs, currently Citibank,
N.A.
“Disclosing Party” has the meaning ascribed thereto in Section 3.4.
“Dispute” has the meaning ascribed thereto in Section 4.3(a).
“Earn-Out Shares” means any Ordinary Shares issued at the Earnout Closing, as such term
is defined in the Allyes Purchase Agreement.
“Equity Securities” means any Ordinary Shares, Ordinary Share Equivalents or other
voting securities of the Company.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“First Closing Date” has the meaning ascribed in the Allyes Purchase Agreement.
“Form F-1” means Registration Statement on Form F-1 promulgated by the Commission under
the Securities Act or any substantially similar form then in effect.
“Form F-3” means Registration Statement on Form F-3 promulgated by the Commission under
the Securities Act or any substantially similar form then in effect.
“Form S-1” means Registration Statement on Form S-1 promulgated by the Commission under
the Securities Act or any substantially similar form then in effect.
“Form S-3” means Registration Statement on Form S-3 promulgated by the Commission under
the Securities Act or any substantially similar form then in effect.
“Holders” means the Allyes Holders together with the permitted transferees and assigns
of any Holder.
“Hong Kong” means the Hong Kong Special Administrative Region.
“IDG” means IDG Technology Venture Investments, LP, IDG-Accel China Growth
Fund-A L.P., IDG-Accel China Growth Fund L.P. and IDG-Accel China Investors L.P.
“Initiating Holders” means, with respect to a request duly made to Register any
Registrable Securities under Section 2.1(a), the Holders initiating such request.
“Newco” means Magic Elite Group Ltd.
“Oak” means Oak Investment Partners XI, Limited Partnership, a Delaware limited
partnership.
“Ordinary Shares” means the ordinary shares, par value US$0.00005 per share, of the
Company.
“Ordinary Share Equivalents” means warrants, options and rights exercisable for
Ordinary Shares and instruments convertible or exchangeable for Ordinary Shares.
“Parties” has the meaning ascribed thereto in Section 4.
“Person” means any natural person, corporation limited liability company, joint stock
company, joint venture, partnership, enterprise, trust, unincorporated organization or any
other entity or organization.
“Registration” means a registration effected by preparing and filing a Registration
Statement and the declaration or ordering of the effectiveness of that Registration
Statement, and the terms “Register” and “Registered” have meanings correlative with the
foregoing.
“Registrable Securities” means the Allyes Registrable Securities, excluding in all
cases, however, any Equity Securities sold by a Person in a transaction other than an
assignment pursuant to Section 4.1.
“Registration Statement” means a registration statement prepared on Forms X-0, X-0, X-0
or F-1 under the Securities Act, or on any comparable form in connection with registration
in a jurisdiction other than the United States.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Underwritten Offering” has the meaning ascribed in Section 2.1(a)(1)
“Violation” has the meaning ascribed thereto in Section 2.6(a).
1.2 Interpretation. For all purposes of this Agreement, except as otherwise expressly
herein provided, (i) the terms defined in Section 1 shall have the meanings assigned to them in
Section 1 and include the plural as well as the singular, (ii) all references in this Agreement to
designated “Sections” and other subdivisions are to the designated Sections and other subdivisions
of the body of this Agreement, (iii) pronouns of either gender or neuter shall include, as
appropriate, the other pronoun forms, (iv) the words “herein,” “hereof” and “hereunder” and other
words of similar import refer to this Agreement as a whole and not to any particular Section or
other subdivision, and (v) all references in this Agreement to
designated Schedules, Exhibits and Annexes are to the Schedules, Exhibits and Annexes attached
to this Agreement.
SECTION 2 REGISTRATION RIGHTS.
2.1 Demand Registration Rights.
| (a) | Registration. |
(1) Subject to the terms of this Agreement and the Allyes Lock-up Agreements, from time to
time and at any time, Holders holding 3,000,000 Ordinary Shares (as equitably adjusted for any
stock splits, stock dividends, recapitalizations, reorganizations or similar events) that are
Registrable Securities originally issued pursuant to the Allyes Purchase Agreement may request the
Company in writing to register Registrable Securities (a “Registration”); provided however, that
if a request for Registration is for an underwritten public offering (an “Underwritten Offering”),
such request shall be subject to the reasonable requirement that the reasonably anticipated
aggregate price to the public not to be less than US$40,000,000 and represents at least 3,000,000
Ordinary Shares (as equitably adjusted for any stock splits, stock dividends, recapitalizations,
reorganizations or similar events) that are Registrable Securities. Upon receipt of such a
request, the Company shall (i) promptly, and in any event within ten (10) Business Days after
receipt of such written request, give written notice of the proposed Registration to all other
Holders and (ii) use best efforts to cause, as soon as practicable, the Registrable Securities
specified in the request, together with any Registrable Securities of any Holder who requests in
writing to join such Registration within twenty (20) Business Days after the Company’s delivery of
written notice, to be Registered and/or qualified for sale and distribution to the public in such
jurisdictions as the Initiating Holders may reasonably request. Notwithstanding anything contrary
contained herein, the Company shall be not obligated to effect more than three (3) Registrations
pursuant to this Section 2.1(a)(1).
(2) Subject to the terms of this Agreement and the Allyes Lock-up Agreements, on a date at
least 150 days and no more than 330 days following the First Closing Date, Newco may request the
Company in writing to effect a Registration, which shall not be an Underwritten Offering (a “Newco
Registration”); provided however the Company shall not be obligated to effect such Newco
Registration if the Company has previously effected a Registration pursuant to Section 2.1(a)(1)
above. Upon receipt of such a request, the Company shall (i) promptly, and in any event within ten
(10) Business Days after receipt of such written request, give written notice of the proposed
Registration to all other Holders and (ii) use best efforts to cause, as soon as practicable, the
Registrable Securities specified in the request, together with any Registrable Securities of any
Holder who requests in writing to join such Registration within twenty (20) Business Days after the
Company’s delivery of written notice, to be Registered and/or qualified for sale and distribution
to the public in such jurisdictions as the Initiating Holders may reasonably request.
Notwithstanding anything contrary contained herein, the Company shall not be obligated to effect
more than one (1) Registration pursuant to this Section 2.1(a)(2).
(3) Any Registration made pursuant to this Section 2.1 shall be made (x) if available, on the
Company’s existing Registration Statement on Form F-3ASR or (y) in each case subject to the terms
of this Section 2.1(a)(3) below, (i) if such F-3ASR is not available, on another Registration
Statement on Form F-3 (or any successor to Form F-3 or Form S-3) if
such form is available for use by the Company or (ii) otherwise on Form F-1 or Form S-1 (or
any successor to Form F-1 or S-1) if such form is available for use by the Company. In the event
that the Company becomes ineligible to use its existing Registration Statement on Form F-3ASR for
the reasons set forth in Schedule 2.1(a)(3) hereto, the Company shall not be obligated to effect a
Registration until it regains eligibility to use Form F-3ASR.
(4) Any Registrable Securities that were registered but not distributed by a Holder pursuant
to a Registration other than an Underwritten Offering shall cease to be considered Registrable
Securities.
(b) Right of Deferral. Notwithstanding anything to the contrary in this Section 2.1:
(1) The Company shall not be obligated to Register or qualify Registrable Securities for an
Underwritten Offering pursuant to any of the provisions of
Section 2.1 if, (x) within the six (6) month period preceding the date of such request, the Company has
either (i) already effected a Registration for an Underwritten Offering under any of the provisions
of Section 2.1 or (ii) already effected a Registration (other
than a registration of securities in a transaction under Rule 145 of the Securities Act or with
respect to an employee benefit plan) in which the Holders had an opportunity to participate
pursuant to the provisions of Section 2.2 and no Registrable Securities of the Holders were
excluded from such Registration pursuant to the provisions of Section 2.2(c), or (y) within the
three (3) month period preceding the date of such request, the Company has already effected a
Registration other than an Underwritten Offering under any of the provisions of Section 2.1.
(2) The Company shall not be obligated to Register or qualify Registrable Securities pursuant
to Section 2.1 if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer of the Company stating that, in the good faith
judgment of the Board of Directors of the Company, it would be materially detrimental to the
Company and its shareholders for a Registration Statement to be filed in the near future.
Following delivery of such certificate, the Company shall have the right to defer such filing for a
period not to exceed ninety (90) days from the receipt of any request duly submitted by Holders
under Section 2.1 or to Register Registrable Securities;
provided, however, that the Company shall not utilize this right more than once in any
twelve (12) month period.
(c) Underwritten Offerings. If, in connection with a request to Register Registrable
Securities under the provisions of Section 2.1 (1), the Initiating
Holders seek to distribute such Registrable Securities through an Underwritten Offering, they shall
so advise the Company as a part of the request, and the Company shall include such information in
the written notice to the other Holders described in to
Section 2.1 (1). In such event, the right of any Holder to include its Registrable Securities in such
Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering
and the inclusion of such Holder’s Registrable Securities in the Underwritten Offering (unless
otherwise mutually agreed by Initiating Holders representing a majority in voting power of the
Registrable Securities held by the Initiating Holders) to the extent provided herein. All Holders
proposing to distribute their securities through such Underwritten Offering shall enter into an
underwriting agreement in customary form with the underwriter or underwriters selected for such
Underwritten Offering by the Company (which underwriter or underwriters shall be reasonably
acceptable to Initiating Holders representing a majority in voting power of the Registrable
Securities held by the Initiating Holders). Notwithstanding any other provision of this Agreement,
if the managing underwriter advises the Company that marketing factors (including the aggregate
number of securities requested to be Registered, the general condition of the market, and the
status of the Persons proposing to sell securities pursuant to the Registration) require a
limitation of the number of Equity Securities to be underwritten, the underwriters may exclude such
number of Registrable Securities from the Underwritten Offering as required (i) after excluding any
other Equity Securities from the Underwritten Offering (including, without limitation, any Equity
Securities which the Company may seek to include in the Underwritten Offering for its own account)
and (ii) so long as at least thirty percent (30%) in voting power of any Registrable Securities
requested by the Holders to be included in such Underwritten Offering and Registration shall be
included. If a limitation of the number of Registrable Securities is required pursuant to this
Section 2.1(c), the number of Registrable Securities that may be included in the Underwritten
Offering by selling Holders shall be allocated among such Holders, in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities which the Holders would otherwise
be entitled to include in the Registration. If any Holder disapproves of the terms of any
Underwritten Offering, the Holder may elect to withdraw therefrom by written notice to the Company
and the underwriters delivered at least ten (10) Business Days prior to the effective date of the
Registration Statement. Any Registrable Securities excluded or withdrawn from such underwriting
shall be withdrawn from the Registration.
2.2 Piggyback Registrations.
(a) Registration of the Company’s Securities. Subject to Section 2.2(c) and the terms
of the Allyes Lock-up Agreements, if the Company proposes to Register for its own account any of
its Equity Securities in connection with the public offering of such securities, the Company shall
promptly give each Holder written notice of such Registration and, upon the written request of any
Holder given within twenty (20) days after delivery of such notice, the Company shall use its best
efforts to include in such Registration any Registrable Securities thereby requested by such
Holder. If a Holder decides not to include all or any of its Registrable Securities in such
Registration by the Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent Registration Statement or Registration Statements as
may be filed by the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(b) Right to Terminate Registration. The Company shall have the right to terminate or
withdraw any Registration initiated by it under Section 2.2(a) prior to the effectiveness of such
Registration, whether or not any Holder has elected to participate therein. The expenses of such
withdrawn Registration shall be borne by the Company in accordance with Section 2.3.
| (c) | Underwriting Requirements. |
(1) In connection with any offering involving an underwriting of the Company’s Equity
Securities, the Company shall not be required to Register the Registrable Securities of a Holder
under this Section 2.2 unless such Holder shall include such Registrable Securities in the
underwriting and such Holder enters into an underwriting agreement in customary form with the
underwriters selected by the Company and setting
forth such terms for the underwriting as have been agreed upon between the Company and the
underwriters. Subject to Section 2.2(c)(2), in the event the underwriters advise Holders seeking
Registration of Registrable Securities pursuant to this Section 2.2 in writing that market factors
(including the aggregate number of Registrable Securities requested to be Registered, the general
condition of the market, and the status of the Persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of Equity Securities to be underwritten, the
underwriters may exclude some or all Registrable Securities from the Registration and underwriting
after excluding any other Equity Securities from the underwriting (other than any Equity Securities
which the Company may seek to include in the underwriting for its own account), and the number of
Equity Securities and Registrable Securities that may be included in the Registration and the
underwriting shall be allocated (i) first, to the Company and (ii) thereafter, among the Holders
requesting inclusion of their Registrable Securities in such Registration Statement in proportion,
as nearly as practicable, to the respective amounts of Registrable Securities which the Holders
would otherwise be entitled to include in the Registration.
(2) Notwithstanding anything to the contrary in this Section 2.2 (c), in connection with any
offering involving an underwriting of the Company’s Equity Securities, in no event shall the
underwriters exclude any Registrable Securities which Holders may seek to include in such
Registration and underwriting under this Section 2.2 unless at least thirty percent (30%) in voting
power of any Registrable Securities requested by the Holders to be included in such underwriting
and Registration shall be included.
(3) If any Holder disapproves of the terms of any underwriting, the Holder may elect to
withdraw therefrom by written notice to the Company and the underwriters delivered at least seven
(7) days prior to the effective date of the Registration Statement. Any Registrable Securities
excluded or withdrawn from the underwriting shall be withdrawn from the Registration.
(d) Exempt Transactions. The Company shall have no obligation to Register any
Registrable Securities under this Section 2.2 in connection with a Registration by the Company (i)
relating solely to the sale of securities to participants in a Company share plan, (ii) relating to
a corporate reorganization or other transaction under Rule 145 of the Securities Act (or comparable
provision under the laws of another jurisdiction, as applicable), or (iii) on any form that does
not include substantially the same information as would be required to be included in a
Registration Statement covering the sale of the Registrable securities.
2.3 Expenses. All expenses incurred in connection with Registrations, filings or
qualifications pursuant to this Agreement, including, without limitation, (i) any underwriting,
brokerage or similar commissions, compensation, discounts or concessions paid or allowed by the
Company incurred or to be incurred by the Selling Shareholders in connection with such issue or
sale, (ii) all expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other documents relating to
the performance of and compliance with this Agreement (excluding expenses or costs in respect of
Company employees in connection therewith) , (iii) all fees and expenses incurred in connection
with the listing, if any, of any of the Registrable Securities on any securities exchange or
exchanges, (iv) all fees and expenses of the Depositary relating to the deposit of the Registrable
Securities into the deposit facility and issuance by the Depositary of shares or receipts
representing such Registrable Securities,
(v) the fees and disbursements of counsel for the Company and of the independent public
accountants of the Company specifically related to such Registration, including the expenses of any
special audits or “comfort” letters required by or incident to such performance and compliance,
(vi) the fees and expenses of share registry or custodian, and (vii) the reasonable fees and
disbursements of counsel representing the Holders of Registrable Securities, (viii) all U.S.
federal, “blue sky” and all foreign registration, filing and qualification fees, accounting fees,
and fees and disbursements of counsel for the Company (but excluding underwriters’ discounts and
commissions relating to shares sold by the Holders), shall be borne by the Holders (allocated pro
rata based on the Registratable Securities included in such Registration); provided, however, that
(i) where an offering of securities includes a primary offering by the Company or a secondary
offering of securities by other shareholders of the Company other than the Holders, the Holders
shall be bear the pro rata portion of expenses attributable to them based on the number of
Registrable Securities included in such Registration (for the avoidance of doubt, any such fees or
expenses that are incurred entirely as a result of sales by selling shareholders shall be borne on
a pro rata basis with regard only to the Registrable Securities
offered by the Selling
Shareholders in the aggregate and not by the Company) and (ii) the Company shall use
commercially reasonable efforts to minimize the amount of such expenses and, in connection with any
Underwritten Offering, use commercial reasonable efforts to cause the related underwriters to pay
such expenses to the extent possible (other than any related brokerage or selling commission or
discount); provided, however, that the failure or unwillingness of the related underwriters to
agree to pay such expenses in whole or in part shall not affect the selling shareholders’
obligations to pay any expenses pursuant to this Section.
2.4 Obligations of the Company. Subject to the provisions of Section 2.3 hereof,
whenever required to effect the Registration of any Registrable Securities under this Agreement the
Company, shall as expeditiously as reasonably possible:
(a) Registration Statement. Use its reasonable best efforts to ensure that its
existing Registration Statement is Effective; provided, that the Company shall not be
required to keep any such Registration Statement effective for more than (i) one (1) year in the
case of a Registration Statement on Form X-0, X-0, X-0XXX or (ii) ninety (90) days in the case of a
Registration Statement on Form S-1 or F-1.
(b) Amendments and Supplements. Prepare and file with the Commission such amendments
and supplements to such Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of Applicable Securities
Law with respect to the disposition of all securities covered by such Registration Statement.
(c) Prospectuses. Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the Applicable
Securities Law, and such other documents as such Holders may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by them that are included in such
Registration.
(d) Blue Sky. Use its best efforts to register and qualify the securities covered by
such Registration Statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(e) Underwriting. In the event of any Underwritten Offering, enter into and perform
its obligations under an underwriting agreement in usual and customary form, with the managing
underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter
into and perform its obligations under such an agreement.
(f) Notification. Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is required to be delivered
under Applicable Securities Law of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then existing.
(g) Opinion and Comfort Letter. In the event of any Underwritten Offering, furnish, at
the request of any Holder requesting Registration of Registrable Securities, on the date that such
Registrable Securities are delivered to the underwriter(s) for sale, if such securities are being
sold through underwriters, or, if such securities are not being sold through underwriters, on the
date that the Registration Statement with respect to such securities becomes effective, (i) an
opinion, dated as of such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the Holders requesting
Registration, addressed to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a “comfort” letter dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting registration, addressed
to the underwriters, if any, and to the Holders requesting registration of Registrable Securities.
(h) Transfer Agent and CUSIP. Provide a transfer agent and registrar for all
Registrable Securities Registered pursuant to the Registration Statement and, where applicable, a
CUSIP number for all those Registrable Securities, in each case not later than the effective date
of the Registration.
(i) Further Actions. Take all reasonable action necessary to: (i) cause the
Depositary to accept the deposit of the Registrable Securities into the deposit facility to issue
ADSs (or receipts) representing such Registrable Securities and to issue the related ADRs; (ii)
cause the Depositary to register with the SEC (to the extent necessary) such ADSs; and (iii) list
the Registrable Securities on the primary exchange upon which the Company’s securities are traded.
2.5 Obligations of Holders. It shall be a condition precedent to the obligations of
the Company to Register the Registrable Securities of any Holder pursuant to this Section 2 that
the selling Holder shall furnish to the Company such information regarding itself, the Registrable
Securities held thereby and the intended method of disposition of such securities as shall be
required to timely effect the Registration of such Holder’s Registrable Securities.
2.6 Indemnification. In the event any Registrable Securities are included in a
registration statement under this Section 2:
(a) Company Indemnity. To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, its partners, officers, directors, legal counsel, accountants, any
underwriter (as defined in the Securities Act) for such Holder and each Person, if any, who
controls (as defined in the Securities Act) such Holder or underwriter against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject under laws which are
applicable in connection with any Registration, qualification, or compliance, of the Company’s
securities insofar as such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or violations
(collectively a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in such
Registration Statement, including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto;
(2) the omission or alleged omission to state in the Registration Statement, including any
preliminary prospectus or final prospectus contained therein or any amendments or supplements
thereto, a material fact required to be stated therein, or necessary to make the statements therein
not misleading; or
(3) any violation or alleged violation by the Company of Applicable Securities Laws, or any
rule or regulation promulgated under Applicable Securities Laws;
and the Company will reimburse each such Holder, its partner, officer, director, legal counsel,
accountants, underwriter or controlling Person for any legal or other expenses reasonably incurred
by them, as incurred, in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained in
this Section 2.6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for
any such loss, claim, damage, liability or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such Registration by such Holder, underwriter or controlling
Person of such Holder.
(b) Notice. Promptly after receipt by an indemnified party under this Section 2.6 of
notice of the commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying party under this
Section 2.6, deliver to the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due to actual or potential
conflict of interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the indemnifying party within
a reasonable time of the commencement of any such action shall relieve such indemnifying party of
liability to the indemnified party under this Section 2.6 to the extent the indemnifying party is
prejudiced as a result thereof, but the omission to so deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to any indemnified party otherwise than
under this Section 2.6.
(c) Contribution. If any indemnification provided for in this Section 2.6 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and of the indemnified party, on the other, in connection with the statements or omissions
that resulted in such loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information, and opportunity to correct or prevent such statement or omission.
(d) Survival. The obligations of the Company and Holders under this Section 2.6 shall
survive the completion of any offering of Registrable Securities in a Registration Statement,
regardless of the expiration of any statutes of limitation or extensions of such statutes.
2.7 Termination of the Company’s Obligations. The Company shall not be obligated under
this Section 2 to Register any Registrable Securities which a Holder proposes to sell after
September 18, 2009, or, if, in the reasonable opinion of counsel to the Company, all such
Registrable Securities proposed to be sold may then be sold without registration in any ninety (90)
day period pursuant to Rule 144 under the Securities Act.
2.8 Rule 144 Reporting. With a view to making available the benefits of Rule 144
promulgated under the Securities Act and any comparable provision of Applicable Securities Law
which may at any time permit the sale of the Registrable Securities to the public without
registration or pursuant to a registration on Form X-0, X-0, X-0 or F-3, the Company agrees to:
(a) Make and keep public information available, as those terms are understood and defined in
Rule 144 under the Securities Act (or comparable provision under Applicable Securities Laws in any
jurisdiction where the Company’s securities are listed), at all times;
(b) Use reasonable, diligent efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under Applicable Securities Law; and
(c) So long as a Holder owns any Registrable Securities, to furnish to such Holder forthwith
upon request (i) a written statement by the Company as to its compliance with the reporting
requirements of all Applicable Securities Laws, or whether it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 or F-3 (or any form comparable thereto under
Applicable Securities Laws of any jurisdiction where the Company’s securities are listed), (ii) a
copy of the most recent annual or quarterly report of the Company and such other reports and
documents as may be filed by the Company with the Commission, and (iii) such other reports and
documents of the Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission that permits the selling of any such securities without registration
or pursuant to Form S-3 or F-3 (or any
form comparable thereto under Applicable Securities Laws of any jurisdiction where the
Company’s securities are listed).
SECTION 3 CONFIDENTIALITY AND NON-DISCLOSURE.
3.1 Disclosure of Terms. The terms and conditions (the “Financing Terms”) of this
Agreement, any agreement pursuant to which the Former Series A Holders subscribed to the Company’s
Equity Securities, together with any annexes, exhibits and schedules thereto, and any agreement
pursuant to which the Allyes Holders received the Company’s Equity Securities, together with any
annexes, exhibits and schedules thereto (including any Allyes Ancillary Document) (collectively,
the “Financing Documents”), including their existence, shall be considered confidential information
and shall not be disclosed by any party hereto to any third party except in accordance with the
provisions set forth below.
3.2 Press Releases. None of the parties hereto shall issue any press release or
otherwise make any announcement in an advertisement, conference or otherwise disclosing any of the
Financing Terms without the prior approval in writing of the Company.
3.3 Permitted Disclosures. Notwithstanding the foregoing, (i) any party may disclose
the existence of the financing (but not the Financing Terms) to any third party, and (ii) any party
may disclose any of the Financing Terms to its current or bona fide prospective investors,
employees, investment bankers, lenders, partners, accountants and attorneys, in the case of either
(i) or (ii), only where such Person is under appropriate non-disclosure obligations.
3.4 Legally Compelled Disclosure. In the event that any party is requested or becomes
legally compelled (including without limitation, pursuant to securities laws and regulations) to
disclose the existence of any Financing Document or any of the Financing Terms hereof in
contravention of the provisions of this Section 3, such party (the “Disclosing Party”) shall
provide the other parties hereto with prompt written notice of that fact and use all reasonable
efforts to seek (with the cooperation and reasonable efforts of the other parties hereto) a
protective order, confidential treatment or other appropriate remedy. In any event, the Disclosing
Party shall furnish only that portion of the information which is legally required and shall
exercise reasonable efforts to keep confidential such information to the extent reasonably
requested by any other party hereto.
3.5 Other Information. The provisions of this Section 3 shall be in addition to, and
not in substitution for, the provisions of any separate nondisclosure agreement executed by any of
the parties hereto with respect to the transactions contemplated hereby.]
SECTION 4 MISCELLANEOUS
4.1 Binding Effect; Assignment.
(a) Notwithstanding anything herein to the contrary, the rights of any Allyes Holder under
this Agreement may be assigned or transferred (i) by Newco to any of its current shareholders (or
any entity controlled by or beneficially owned by any such shareholders) in an amount not to be
fewer than 25,000 Ordinary Shares that are Registrable Securities in each assignment or transfer,
(ii) by other Allyes Holders to their respective
partners, general partners, limited partners or other entities contractually or legally
entitled to distributions from such a Holder, or (iii) by either IDG or Oak in an amount not to be
fewer than 1,000,000 Ordinary Shares that are Registrable Securities (or by both IDG and Oak of an
aggregate of no fewer than 1,000,000 Ordinary Shares that are Registrable Securities), in each case
if (x) the Company is, within a reasonable time after such transfer, furnished with written notice
of the name and address of such transferee or assignee and the securities with respect to which
such rights are being assigned and (y) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Section 4 and the terms and conditions of each
Section of this Agreement with respect to which any rights are being assigned thereto under this
clause. From the time of such transfer or assignment, for all purposes of each Section of this
agreement with respect to which rights are assigned thereto under this clause, such transferee or
assignee shall be treated as a “Allyes Holder”, as the case may be.
(b) This Agreement shall be binding upon and shall be enforceable by each party, its
successors and permitted assigns. Except as provided in Section 4.1(a) and Section 4.1, no party may assign any of its rights or obligations hereunder without
the prior written approval of the other parties.
| 4.2 | Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. | ||
| 4.3 | Dispute Resolution. |
(a) Any dispute, controversy or claim (each, a “Dispute”) arising out of or relating to this
Agreement, or the interpretation, breach, termination or validity hereof, shall be resolved at the
first instance through consultation between the representatives appointed by the highest ranking
corporate officer of the Company and a representative selected by a majority of the Registrable
Securities outstanding at the time of such dispute (provided any dispute as to any particular
Registration Statement shall be resolved by a representative selected by the Holders representing a
majority of the Registrable Securities included in such Registration Statement) (each a
“Party”). Such consultation shall begin immediately after either Party has delivered to the other
Party a written notice for such consultation.
(b) If the Dispute is not resolved within sixty (60) days following the date on which such
notice is given, the Dispute shall be submitted to arbitration upon the request of either Party
with notice to the other Party (the “Arbitration Notice”).
(c) The arbitration shall be conducted in Hong Kong under the auspices of the Hong Kong
International Arbitration Centre (the “Centre”). There shall be three (3) arbitrators. The
claimants in the Dispute shall collectively choose one arbitrator, and the respondents shall
collectively choose one arbitrator. The Secretary General of the Centre shall select the third
arbitrator, who shall be qualified to practice law in the State of New York. If any of the members
of the arbitral tribunal have not been appointed within thirty (30) days after the Arbitration
Notice is given, the relevant appointment shall be made by the Secretary General of the Centre.
(d) The arbitration proceedings shall be conducted in English. The arbitration tribunal shall
apply the Arbitration Rules of the United Nations Commission on International Trade Law, as in
effect at the time of the arbitration. However, if such rules are
in conflict with the provisions of this Section 4.3, including the provisions concerning the
appointment of arbitrator, the provisions of this Section 4.3 shall prevail.
(e) Each Party shall cooperate with the other in making full disclosure of and providing
complete access to all information and documents requested by the other in connection with such
arbitration proceedings, subject only to any confidentiality obligations binding on such Party.
(f) The arbitrator shall decide any dispute submitted by the parties to the arbitration
strictly in accordance with the substantive law of the State of New York and shall not apply any
other substantive law.
(g) The award of the arbitration tribunal shall be final and binding upon the Parties, and the
prevailing Party may apply to a court of competent jurisdiction for enforcement of such award.
(h) Either Party shall be entitled to seek preliminary injunctive relief, if possible, from
any court of competent jurisdiction pending the constitution of the arbitral tribunal.
(i) During the course of the arbitration tribunal’s adjudication of the dispute, this
Agreement shall continue to be performed except with respect to the part in dispute and under
adjudication.
(j) The cost of arbitration (including legal, accounting and other professional fees and
expenses reasonably incurred, by any prevailing party with respect to the investigation,
collection, prosecution and/or defense of any claim in the Dispute) shall be borne pro rata by each
losing party.
4.4 Amendments; Termination. This Agreement and its provisions may be amended,
changed, waived, discharged or terminated only by a writing signed by each of (i) the Company and
(ii) the Allyes Holders representing a majority in voting power of Allyes Registrable Securities
then outstanding and which were received pursuant to the Allyes Purchase Agreement. Any amendment,
change, waiver, discharge or termination effected in accordance with the preceding sentence shall
be binding upon each of the parties hereto and their successors and permitted assigns. Without
limiting the foregoing, any party hereto may in writing waive any right that it individually holds
hereunder without seeking the prior consent of any other party hereto. This Agreement shall
automatically terminate when all Holders cease to hold any Allyes Registrable Securities.
4.5 Notices. All notices, claims, certificates, requests, demands and other
communications under this Agreement shall be made in writing and shall be delivered to any party
hereto by hand or sent by facsimile, or sent, postage prepaid, by reputable overnight courier
services at the address given for such party on the signature pages hereof (or at such other
address for such party as shall be specified by like notice), and shall be deemed given when so
delivered by hand, or if sent by facsimile, upon receipt of a confirmed transmittal receipt, or if
sent by overnight courier, five (5) calendar days after delivery to or pickup by the overnight
courier service.
4.6 Further Assurances. Each Party shall do and perform, or cause to be done and
performed, all such further acts and things and shall execute and deliver all such other
agreements, certificates, instruments and documents as the other Party may reasonably request
to give effect to the terms and intent of this Agreement.
4.7 Entire Agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and supersedes all prior written or oral
understandings or agreements.
4.8 Severability. If any provision of this Agreement shall be held invalid or
unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
4.9 Remedies Cumulative. The rights and remedies available under this Agreement or
otherwise available shall be cumulative of all other rights and remedies and may be exercised
successively.
4.10 Counterpart Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
4.11 No Third Party Beneficiary. Except as contemplated in Section 2.6, nothing in
this Agreement is intended to confer upon any Person other than the Parties hereto and their
respective successors and permitted assigns any rights, benefits, or obligations hereunder.
[Signature pages follow.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized officer, in each case as of the date first above written.
| FOCUS MEDIA HOLDING LIMITED |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Chief Executive Officer | |||
[Company
and Selling Shareholder Signature Pages Follow]
IN WITNESS
WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized representative, in each case as of the date first above written.
| IDG TECHNOLOGY VENTURE INVESTMENTS, L.P. |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Capacity: | ||||
| Address: | ||||
| IDG-ACCEL CHINA GROWTH FUND-A L.P. |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Capacity: | ||||
| Address: | ||||
| IDG-ACCEL CHINA INVESTORS L.P. |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Capacity: | ||||
| Address: | ||||
| IDG-ACCEL CHINA GROWTH FUND L.P. |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Capacity: | ||||
| Address: | ||||
IN WITNESS
WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized representative, in each case as of the date first above written.
| OAK INVESTMENT PARTNERS XI, L.P. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Capacity: | ||||
| Address: | 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxx, XX 00000 Xxxxxx Xxxxxx of America Phone: (1-650) 614 -3700 Fax: (0-000) 000-0000 Attention: |
|||
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized representative, in each case as of the date first above written.
| ALLYES INFORMATION TECHNOLOGY COMPANY LIMITED |
||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx XXX | |||
| Capacity: | Chief Executive Officer | |||
| Address: | 21/F, Xx. 0000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 200040 People's Republic of China |
|||
| AURA INVESTMENT HOLDINGS LIMITED |
||||
| By: | /s/ Xxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxx Xxxxx | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| CAPTAINS ENTERPRISES LIMITED |
||||
| By: | /s/ Xxxxxx Xxxxxx Xxxx | |||
| Name: | Xxxxxxx XXXX (Xxxxxx Xxxxxx XXXX) | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| KINGHILL INTERNATIONAL HOLDING CO, LTD. |
||||
| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx XXXX | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| LATITUDE HOLDINGS GROUP LIMITED |
||||
| By: | /s/ Xxx Xxxx | |||
| Name: | Xxx XXXX | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized representative, in each case as of the date first above written.
| LINKVALUE LTD. |
||||
| By: | /s/ Xx Xxx, Rongzheng Xu | |||
| Name: | Lie Jie | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| PREMACY CO. LTD. |
||||
| By: | /s/ Ting Jia | |||
| Name: | Ting Jia | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| SEA DRAGON HOLDING COMPANY LTD. |
||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx XXX | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| SHARVEST CAPITAL LIMITED |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx XXXX | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| SMART MASTER INTERNATIONAL LIMITED |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx XXXX | |||
| Capacity: | Authorized Representative | |||
| Address: | ||||
IN WITNESS
WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized representative, in each case as of the date first above written.
| TECHWARE HOLDING COMPANY LTD. |
||||
| By: | Xxxxxxxx Xxxx | |||
| Name: | ||||
| Capacity: | Authorized Representative | |||
| Address: | ||||
| TRANS CHINA LTD. |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx XXXX | |||
| Capacity: | Authorized Representative | |||
| XXX ZHONGSHAN QIAN |
||||
| /s/ Xxx Zhongshan Qian | ||||
| Passport Number: | ||||
| Address: | ||||
(LI JUNZHI)
| /s/ Junzhi Li | ||||
| Address: | ||||
(XXX XXXXXX)
| /s/ Xxxxxx Xxx | ||||
| ID Number: | ||||
| Address: | ||||
(XXXXX XXXX)
| /s/ Xxxx Xxxxx | ||||
| ID Number: | ||||
| Address: | ||||
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized representative, in each case as of the date first above written.
(BAI YUNHAI)
| /s/ Yunhai Bai | ||||
| ID Number: | ||||
| Address: | ||||
(XX XXX)
| /s/ Xxx Xx | ||||
| ID Number: | ||||
| Address: | ||||
(ZHAI JUNNI)
| /s/ Junni Zhai | ||||
| ID Number: | ||||
| Address: | ||||
(XX XX)
| /s/ Lu Li | ||||
| ID Number: | ||||
| Address: | ||||
(ZHOU DAI)
| /s/ Xxx Xxxx | ||||
| ID Number: | ||||
| Address: | ||||
Schedule A
— Allyes Holders
IDG Technology Venture Investments, LP
IDG Technology Venture Investments, LP
IDG-ACCEL CHINA GROWTH FUND-A L.P.
IDG-ACCEL CHINA GROWTH FUND L.P.
IDG-ACCEL CHINA INVESTORS L.P.
Oak Investment Partners XI, L.P.
Techware Holding Company Ltd
KingHill International Holding Co, Limited
LinkValue Ltd.
Sharvest Capital Limited
Transchina
CAPTAINS ENTERPRISES LIMITED
AURA INVESTMENT HOLDINGS LIMITED
SMART MASTER INTERNATIONAL LIMITED
Sea Dragon Holding Company Ltd
Premacy Co. Limited
Latitude Holdings Group Limited
Xxx Zhongshan Xxxx
Xx Xxxxxx
Xxx Xxxxxx
xxxxx Jun
Bai Yunhai
Xx Xxx
Zhai Junni
Xx Xx
Xxxx Xxx
Registration Rights Agreement Schedule 2.1(a)(3)
| 1. | Deloitte Touche Tohmatsu’s inability or unwillingness to provide an audit report in respect of Allyes Information Technology Company Limited for fiscal year 2006. | ||
| 2. | Any issue or problem relating to SEC Rule 3-05 of Regulation S-X that arises as a result of Focus Media Holding Limited’s acquisition of Allyes Information Technology Company Limited. | ||
| 3. | Any other issue or problem resulting from Focus Media Holding Limited’s acquisition of Allyes Information Technology Company Limited and that renders Focus Media Holding Limited ineligible to use Form F-3ASR. |
