UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)
AirMedia
Group Inc.
(Name of Issuer)
Ordinary Shares, par value $0.001 per share
(Title of Class of Securities)
009411109
(CUSIP Number)
Herman Man Guo
Wealthy Environment Limited
Dan Shao
Global Earning
Pacific Limited
Qing Xu
Mambo Fiesta Limited
c/o AirMedia Group Inc.
17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027
The Peoples Republic of China
Phone: +86 10 8460 8181
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
With a copy to:
Z.
Julie Gao, Esq.
Haiping Li, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
c/o 42/F Edinburgh Tower, The Landmark
15 Queens Road Central
Hong Kong
Phone: +852
3740-4700
September 29, 2015
(Date of Event Which Requires Filing of This Statement)
If the filing
person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following
box. ¨
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This Amendment No. 2 to statement on Schedule 13D (this Amendment No. 2) amends and supplements the statement on Schedule 13D filed on behalf of each of Herman Man Guo, Wealthy Environment Limited,
Dan Shao, Global Earning Pacific Limited, James Zhonghua Feng, Ample Business International Ltd., Qing Xu and Mambo Fiesta Limited with the Securities and Exchange Commission (the SEC) on June 29, 2015 as amended by amendments
thereto (the Original Schedule 13D, and, together with this Amendment No. 2, the Schedule 13D), with respect to the ordinary shares, par value $0.001 per share, of AirMedia Group Inc., a Cayman Islands Company.
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Capitalized terms used but not defined in this Amendment No. 2 shall have the same meanings ascribed to them in the
Original Schedule 13D. Except as specified herein, this Amendment No. 2 does not modify any of the information previously reported on the Original Schedule 13D.
The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of section 18 of the
Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No. 009411109 |
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Page 2 of 13 Pages |
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1 |
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Names of
reporting persons Herman Man Guo |
2 |
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Check the appropriate box if a member
of a group (a) ¨ (b) ¨ |
3 |
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SEC use only
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4 |
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Source of funds (see instructions)
PF, OO |
5 |
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Check box if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6 |
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Citizenship or place of
organization Peoples Republic of China |
Number of
shares beneficially
owned by each
reporting person
with |
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7 |
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Sole voting power
19,505,980 ordinary shares |
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8 |
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Shared voting power
0 |
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9 |
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Sole dispositive power
19,505,980 ordinary shares |
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10 |
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Shared dispositive power
0 |
11 |
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Aggregate amount beneficially owned by each reporting person
19,505,980 ordinary shares |
12 |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13 |
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Percent of class represented by amount
in Row (11) 16.00% |
14 |
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Type of reporting person (see
instructions) IN |
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CUSIP No. 009411109 |
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Page 3 of 13 Pages |
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1 |
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Names of
reporting persons Wealthy Environment Limited |
2 |
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Check the appropriate box if a member
of a group (a) ¨ (b) ¨ |
3 |
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SEC use only
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4 |
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Source of funds (see instructions)
WC, OO |
5 |
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Check box if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6 |
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Citizenship or place of
organization British Virgin Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7 |
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Sole voting power
17,505,980 ordinary shares |
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8 |
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Shared voting power
0 |
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9 |
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Sole dispositive power
17,505,980 ordinary shares |
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10 |
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Shared dispositive power
0 |
11 |
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Aggregate amount beneficially owned by each reporting person
17,505,980 ordinary shares |
12 |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13 |
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Percent of class represented by amount
in Row (11) 14.60% |
14 |
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Type of reporting person (see
instructions) CO |
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CUSIP No. 009411109 |
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Page 4 of 13 Pages |
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1 |
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Names of
reporting persons Dan Shao |
2 |
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Check the appropriate box if a member
of a group (a) ¨ (b) ¨ |
3 |
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SEC use only
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4 |
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Source of funds (see instructions)
PF, OO |
5 |
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Check box if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6 |
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Citizenship or place of
organization Peoples Republic of China |
Number of
shares beneficially
owned by each
reporting person
with |
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7 |
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Sole voting power
20,584,214 ordinary shares |
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8 |
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Shared voting power
0 |
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9 |
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Sole dispositive power
20,584,214 ordinary shares |
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10 |
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Shared dispositive power
0 |
11 |
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Aggregate amount beneficially owned by each reporting person
20,584,214 ordinary shares |
12 |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13 |
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Percent of class represented by amount
in Row (11) 17.16% |
14 |
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Type of reporting person (see
instructions) IN |
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CUSIP No. 009411109 |
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Page 5 of 13 Pages |
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1 |
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Names of
reporting persons Global Earning Pacific Limited |
2 |
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Check the appropriate box if a member
of a group (a) ¨ (b) ¨ |
3 |
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SEC use only
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4 |
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Source of funds (see instructions)
WC, OO |
5 |
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Check box if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6 |
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Citizenship or place of
organization British Virgin Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7 |
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Sole voting power
20,000,000 ordinary shares |
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8 |
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Shared voting power
0 |
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9 |
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Sole dispositive power
20,000,000 ordinary shares |
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10 |
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Shared dispositive power
0 |
11 |
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Aggregate amount beneficially owned by each reporting person
20,000,000 ordinary shares |
12 |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13 |
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Percent of class represented by amount
in Row (11) 16.67% |
14 |
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Type of reporting person (see
instructions) CO |
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CUSIP No. 009411109 |
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Page 6 of 13 Pages |
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1 |
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Names of
reporting persons Qing Xu |
2 |
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Check the appropriate box if a member
of a group (a) ¨ (b) ¨ |
3 |
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SEC use only
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4 |
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Source of funds (see instructions)
PF, OO |
5 |
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Check box if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6 |
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Citizenship or place of
organization Peoples Republic of China |
Number of
shares beneficially
owned by each
reporting person
with |
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7 |
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Sole voting power
2,600,000 ordinary shares |
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8 |
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Shared voting power
0 |
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9 |
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Sole dispositive power
2,600,000 ordinary shares |
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10 |
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Shared dispositive power
0 |
11 |
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Aggregate amount beneficially owned by each reporting person
2,600,000 ordinary shares |
12 |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13 |
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Percent of class represented by amount
in Row (11) 2.16% |
14 |
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Type of reporting person (see
instructions) IN |
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CUSIP No. 009411109 |
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Page 7 of 13 Pages |
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1 |
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Names of
reporting persons Mambo Fiesta Limited |
2 |
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Check the appropriate box if a member
of a group (a) ¨ (b) ¨ |
3 |
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SEC use only
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4 |
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Source of funds (see instructions)
WC, OO |
5 |
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Check box if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6 |
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Citizenship or place of
organization British Virgin Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7 |
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Sole voting power
2,000,000 ordinary shares |
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8 |
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Shared voting power
0 |
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9 |
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Sole dispositive power
2,000,000 ordinary shares |
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10 |
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Shared dispositive power
0 |
11 |
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Aggregate amount beneficially owned by each reporting person
2,000,000 ordinary shares |
12 |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13 |
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Percent of class represented by amount
in Row (11) 1.67% |
14 |
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Type of reporting person (see
instructions) CO |
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CUSIP No. 009411109 |
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Page 8 of 13 Pages |
Item 1. Security and Issuer.
This Amendment No. 2 relates to the ordinary shares, par value $0.001 per share (the Shares), of AirMedia Group Inc., a
Cayman Islands Company (the Company) whose principal executive offices are located at 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China.
American depositary shares (the ADSs and each an ADS), each representing two Shares of the Company, are
listed on the NASDAQ Global Select Market under the symbol AMCN.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Original Schedule 13D is hereby amended and supplemented as follows:
Pursuant to the Merger Agreement (as defined below), Merger Sub (as defined below) will be merged with and into the Company, with the Company
continuing as the surviving entity and a wholly-owned subsidiary of Parent (as defined below) as a result of the Merger (as defined below). The descriptions of the Merger and of the Merger Agreement set forth in Item 4 below are incorporated by
reference in their entirety into this Item 3. The information disclosed in this paragraph is qualified in its entirety by reference to the Merger Agreement, which is presented herein as Exhibit F and is incorporated herein by reference in its
entirety.
It is anticipated that, at a price of US$6.00 in cash per ADS (each representing two Shares) or US$3.00 in cash per Share, in
connection with the Merger, approximately US$270 million will be expended in acquiring approximately 80 million outstanding Shares (calculated based on the number of Shares outstanding as of March 31, 2015) owned by shareholders of the
Company other than the Reporting Persons and paying for approximately 12 million Shares issuable upon the acceleration of outstanding awards granted under the Companys incentive share plans. Pursuant to the Debt Commitment Letter (as defined
below), the Merger will be financed with debt financing from the Financing Bank (as defined below).
Item 4. Purpose of Transaction.
Item 4 of the Original Schedule 13D is hereby amended and supplemented as follows:
Merger Agreement
On
September 29, 2015, (i) AirMedia Holdings Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (Parent) that was formed by the Reporting Persons as a transaction vehicle for
the Merger, (ii) AirMedia Merger Company Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (Merger Sub) and (iii) the Company,
entered into a merger agreement (the Merger Agreement).
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CUSIP No. 009411109 |
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Page
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of 13 Pages |
Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company, with
the Company continuing as the surviving entity and a wholly-owned subsidiary of Parent (the Merger). Under the terms of the Merger Agreement, upon completion of the Merger, the shareholders of the Company will receive US$3.00 per
Share, or US$6.00 per ADS.
The Merger is subject to various closing conditions, including a condition that the Merger Agreement be
approved by the affirmative vote of holders of Shares representing at least two-thirds of the Shares present and voting in person or by proxy as a single class at the Shareholders Meeting which will be convened to consider the approval of the
Merger Agreement and the transactions contemplated thereby.
If the transactions contemplated by the Merger Agreement are consummated, the
Company will become a privately-held company beneficially owned by the Reporting Persons, and its ADSs will no longer be listed on the Nasdaq Global Select Market.
Rollover Agreement
Concurrently with the execution of the Merger Agreement, Parent, Wealthy Environment Limited, Ms. Dan Shao, Global Earning Pacific Limited
and Mambo Fiesta Limited (together, the Rollover Shareholders) entered into a rollover agreement (the Rollover Agreement) with Parent, pursuant to which each of the Rollover Shareholders agreed that, in
connection with the consummation of the transactions contemplated by the Merger Agreement, he, she or it agrees to the cancellation of a certain number of Shares beneficially owned by such Rollover Shareholder (including Shares represented by ADSs,
the Rollover Shares) for no consideration at the effective time of the Merger and to subscribe, or cause his, her or its affiliate to subscribe, for a corresponding number of newly issued ordinary shares of Parent, par value
US$0.0001 per share, in accordance with the terms of the Rollover Agreement. The Rollover Agreement will terminate immediately upon the valid termination of the Merger Agreement.
Voting Agreement
Concurrently with the execution of the Merger Agreement and the Rollover Agreement, Parent, Mr. Herman Man Guo, Wealthy Environment
Limited, Ms. Dan Shao, Global Earning Pacific Limited, Mr. Qing Xu, Mambo Fiesta Limited and Bison Capital Media Limited (together, the Voting Shareholders) also entered into a voting agreement (the Voting
Agreement) with Parent, pursuant to which each of the Voting Shareholders undertook to vote or cause to be voted (including by proxy or written resolution, if applicable) all of its Securities (as defined in the Voting Agreement) for
authorization and approval of the Merger Agreement and the transactions contemplated by the Merger Agreement and against, among other matters, any competing transaction, at any meeting of the Issuers shareholders or in connection with any
written resolution of the Issuers shareholders. Also pursuant to the Voting Agreement, each Shareholder appointed Parent, and any designee of Parent, as its proxy and attorney-in-fact, with full power of substitution, to vote or cause to be
voted (including by proxy or written resolution, if applicable) its Securities as set forth in Part II of Schedule A to the Voting Agreement (the Voting Securities) in accordance with the foregoing. Each Voting Shareholder further
agreed, during the term of the Voting Agreement, not to sell, transfer, pledge, or otherwise dispose of any Voting Securities. The obligations under the Voting Agreement terminate upon the earlier to occur of (a) the closing of the Merger or
(b) the date of termination of the Merger Agreement.
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CUSIP No. 009411109 |
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Page
10
of 13 Pages |
Debt Commitment Letter
On September 29, 2015, China Merchants Bank Co., Ltd., New York Branch (the Financing Bank) issued a debt commitment
letter (the Debt Commitment Letter), which was accepted and agreed to by Parent and Merger Sub, pursuant to which the Financing Bank agreed to arrange and underwrite debt financing in an aggregate amount of up to US$280 million to
fund the transactions contemplated by the Merger Agreement, subject to various customary terms and conditions contained in the Debt Commitment Letter.
Limited Guarantee
Concurrently with the execution of the Merger Agreement, Mr. Guo, Wealthy Environment Limited, Ms. Shao and Global Earning Pacific
Limited (together the Guarantors) entered into a limited guarantee (the Limited Guarantee) with the Company, pursuant to which the Guarantors guaranteed to the Company, on the terms and subject to the conditions
set forth therein, the due and punctual due and punctual payment, performance and discharge of its respective percentage as set forth opposite to its name in Annex A thereto (for each such Guarantor, the Guaranteed Percentage) of
the obligations of Parent or Merger Sub, to pay the Company (a) the Parent Termination Fee (as defined in the Merger Agreement) pursuant to Section 8.06(b) of the Merger Agreement (the Parent Fee Obligations) and
(b) the costs, expenses and interests payable pursuant to Section 6.14(c) and Section 8.06(c) of the Merger Agreement (the Expense Obligations, and together with the Parent Fee Obligations, the Guaranteed
Obligations) as and when due. In addition, the Guarantors agree to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Company in connection with
enforcement of its rights thereunder pursuant to Section 1(a) of the Limited Guarantee. The Guarantors aggregate liability under the Limited Guarantee will not exceed US$6 million.
The Limited Guarantee will terminate as of the earliest of (i) the Effective Time (as defined in the Merger Agreement), (ii) the
termination of the Merger Agreement in accordance with its terms (other than a termination of the Merger Agreement for which a Parent Termination Fee is, in accordance with Section 8.06(b) of the Merger Agreement, due and owing by Parent (a
Qualifying Termination)), and (iii) the date following ninety (90) days from the date of a Qualifying Termination if the Company has not presented a written claim for payment of the Guaranteed Obligation to any Guarantor
by such date.
The descriptions of the Merger Agreement, the Rollover Agreement, the Voting Agreement, the Debt Commitment Letter and the
Limited Guarantee set forth above in this Item 4 do not purport to be complete and are qualified in their entirety by reference to the full text of the Merger Agreement, the Rollover Agreement, the Voting Agreement, the Debt Commitment Letter
and the Limited Guarantee, which have been filed as Exhibits F, G, H, I and J, respectively, and are incorporated herein by this reference.
Item 5. Interest in Securities of the Issuer.
Item 5 of the Original Schedule 13D is hereby amended deleting the entirety of the fifth paragraph thereunder, which referred to the
beneficial ownership of the Shares by Mr. James Zhong Hua Feng.
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CUSIP No. 009411109 |
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Page
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of 13 Pages |
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer.
Item 6 of the Original Schedule 13D is hereby amended and supplemented as follows:
The information regarding the Merger Agreement, the Rollover Agreement, the Voting Agreement, the Debt Commitment Letter and the Limited
Guarantee under Item 4 is incorporated herein by reference in its entirety.
Item 7. Material to be Filed as Exhibits.
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Exhibit No. |
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Description |
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A |
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Joint Filing Agreement, dated October 9, 2015, by and between Mr. Herman Man Guo, Wealthy Environment Limited, Ms. Dan Shao, Global Earning Pacific Limited, Mr. Qing Xu and Mambo Fiesta Limited |
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B* |
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Proposal Letter dated June 19, 2015 from Mr. Herman Man Guo, on behalf of himself and the management of AirMedia Group Inc., to the board of directors of AirMedia Group Inc. |
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C* |
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Consortium Agreement, dated June 29, 2015, by and between Mr. Herman Man Guo, Mr. James Zhonghua Feng and Mr. Qing Xu |
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D** |
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Withdrawal Notice, dated September 18, 2015, executed by Mr. James Zhonghua Feng and acknowledged and agreed by Messrs. Herman Man Guo and Qing Xu |
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E** |
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Amended and Restated Consortium Agreement, dated September 18, 2015, by and between Mr. Herman Man Guo and Mr. Qing Xu |
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F |
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Agreement and Plan of Merger, dated September 29, 2015, among AirMedia Holdings Ltd., AirMedia Merger Company Limited, and AirMedia Group Inc. (incorporated herein by reference to Exhibit 99.1 to Current Report on Form 6-K filed by
the Issuer with the Securities and Exchange Commission on September 30, 2015) |
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G |
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Rollover Agreement, dated September 29, 2015, among AirMedia Holdings Ltd., Wealthy Environment Limited, Ms. Dan Shao, Global Earning Pacific Limited, Mr. Qing Xu and Mambo Fiesta Limited |
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H |
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Voting Agreement, dated September 29, 2015, among AirMedia Holdings Ltd., Mr. Herman Man Guo, Wealthy Environment Limited, Ms. Dan Shao, Global Earning Pacific Limited, Mr. Qing Xu and Mambo Fiesta Limited |
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I |
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Debt Commitment Letter issued by China Merchants Bank Co., Ltd., New York Branch to AirMedia Holdings Ltd. and AirMedia Merger Company Limited, dated as of September 29,
2015 |
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CUSIP No. 009411109 |
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Page
12
of 13 Pages |
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J |
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Limited Guarantee by Mr. Herman Man Guo, Wealthy Environment Limited, Ms. Dan Shao and Global Earning Pacific Limited in favor of AirMedia Group Inc., dated as of September 29, 2015 (incorporated herein by reference to Exhibit
99.3 to Current Report on Form 6-K filed by the Issuer with the Securities and Exchange Commission on September 30, 2015). |
* |
Filed with the Original Schedule 13D. |
** |
Filed with Amendment No. 1 to the Original Schedule 13D. |
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CUSIP No. 009411109 |
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Page
13
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: October 9, 2015
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/s/ Herman Man Guo |
Herman Man Guo |
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Wealthy Environment Limited |
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By: |
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/s/ Herman Man Guo |
Name: |
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Herman Man Guo |
Title: |
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Director |
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/s/ Dan Shao |
Dan Shao |
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Global Earning Pacific Limited |
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By: |
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/s/ Dan Shao |
Name: |
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Dan Shao |
Title: |
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Director |
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/s/ Qing Xu |
Qing Xu |
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Mambo Fiesta Limited |
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By: |
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/s/ Qing Xu |
Name: |
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Qing Xu |
Title: |
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Director |
13
Exhibit A
Joint Filing Agreement
In accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint
filing with all other Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the ordinary shares, par value US$0.001
per share, of AirMedia Group Inc., a Cayman Islands company, and that this Agreement may be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one
and the same instrument.
[Remainder of this page has been left intentionally blank.]
1
SIGNATURE
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of October 9, 2015.
Dated: October 9, 2015
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/s/ Herman Man Guo |
Herman Man Guo |
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Wealthy Environment Limited |
By: |
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/s/ Herman Man Guo |
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Name: |
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Herman Man Guo |
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Title: |
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Director |
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/s/ Dan Shao |
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Dan Shao |
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Global Earning Pacific Limited |
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Name: |
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Dan Shao |
Title: |
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Director |
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/s/ Qing Xu |
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Qing Xu |
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Mambo Fiesta Limited |
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Name: |
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Qing Xu |
Title: |
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Director |
2
Exhibit G
Execution Version
ROLLOVER AGREEMENT
This
ROLLOVER AGREEMENT (this Agreement) is entered into as of September 29, 2015 by and among AirMedia Holdings Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands
(Parent), and the shareholders of AirMedia Group Inc., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Company), listed on Schedule A hereto (each, a
Rollover Shareholder and collectively, the Rollover Shareholders). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
RECITALS
WHEREAS,
Parent, AirMedia Merger Company Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly owned subsidiary of Parent (Merger Sub), and the Company have, concurrently with
the execution of this Agreement, entered into an Agreement and Plan of Merger, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the Merger Agreement), which provides, among
other things, for the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation and a wholly owned subsidiary of Parent (the Merger), upon the terms and subject to the conditions set
forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Rollover Shareholder is the registered holder and beneficial owner
(as defined under Rule 13d-3 of the Exchange Act) of the number of ordinary shares, par value US$0.001 per share, of the Company (the Shares), including Shares represented by ADS, each representing two Shares (collectively, the
Owned Shares) as set forth in the column titled Owned Shares opposite such Rollover Shareholders name in Part I on Schedule A hereto;
WHEREAS, in connection with the consummation of the transactions contemplated by the Merger Agreement, including the Merger, each of the
Rollover Shareholders agrees:
(a) to the cancellation of his, her or its Owned Shares, as set forth in Part II on Schedule A
hereto, for no Merger Consideration (such Owned Shares, the Rollover Shares), and
(b) to subscribe for, or to cause
any of his/her/its affiliates to subscribe for, the number of newly issued ordinary shares of Parent (the Parent Shares) immediately prior to the Closing as set forth in the column titled Parent Shares opposite such
Rollover Shareholders name on Schedule B hereto in accordance with the terms of this Agreement;
WHEREAS, in order to induce
Parent and Merger Sub to enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Merger, the Rollover Shareholders are entering into this Agreement; and
WHEREAS, the Rollover Shareholders acknowledge that Parent and Merger Sub are entering into the Merger Agreement in reliance on the
representations, warranties, covenants and other agreements of the Rollover Shareholders set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound
hereby, Parent and the Rollover Shareholders hereby agree as follows:
Section 1. Cancellation of Rollover Shares.
Subject to the terms and conditions set forth herein, each Rollover Shareholder agrees that the Rollover Shares held by him, her or it shall be cancelled at the Effective Time for nil consideration, and other than the Rollover Shares, all other
equity securities of the Company held by each Rollover Shareholder, if any, shall be treated as set forth in the Merger Agreement.
Section 2. Subscription of Parent Shares. Immediately prior to the Closing, Parent shall issue to each Rollover
Shareholder, and such Rollover Shareholder (or, if designated by such Rollover Shareholder in writing, an Affiliate of such Rollover Shareholder) shall subscribe for, the number of Parent Shares, at US$0.0001 per share, as set forth opposite such
Rollover Shareholders name on Schedule B hereto. For purposes of this Section, Affiliate shall include an exempted company with limited liability, incorporated under the laws of the British Virgin Islands or the Cayman
Islands, that is set up to hold certain Parent Shares in preparation for the future vesting or exercise of share incentive awards to be granted by the Parent, as applicable (such entity, the ESOP SPV). Each Rollover Shareholder
hereby acknowledges and agrees that such Rollover Shareholder shall have no right to any Merger Consideration in respect of its Rollover Shares.
Section 3. Closing. Subject to the satisfaction in full (or waiver) of all of the conditions set forth in Sections 7.01
and 7.02 of the Merger Agreement (other than conditions that by their nature are to be satisfied or waived, as applicable, at the Closing), the closing of the subscription and issuance of Parent Shares contemplated in Section 2 of this
Agreement shall take place immediately prior to the Closing.
Section 4. Deposit of Rollover Shares. No later than
three (3) Business Days prior to the Closing, the Rollover Shareholders and any agent of the Rollover Shareholders holding certificates evidencing any Rollover Shares shall deliver or cause to be delivered to Parent all certificates
representing Rollover Shares in such Persons possession, for disposition in accordance with the terms of this Agreement; such certificates and documents shall be held by Parent or any agent authorized by Parent until the Closing.
Section 5. Irrevocable Election; Restrictions on Transfers.
(a) The execution of this Agreement by the Rollover Shareholders evidences, subject to Section 8 and the proviso in
Section 10(l), the irrevocable election and agreement by the Rollover Shareholders to subscribe for Parent Shares and agree to the cancellation of their respective Rollover Shares on the terms and conditions set forth herein. In
furtherance of the foregoing, each Rollover Shareholder covenants and agrees, severally and not jointly, that from the date hereof until any termination of this Agreement pursuant to Section 8, such Rollover Shareholder shall not,
without the prior written consent by the other Rollover Shareholders, directly or indirectly, (i) tender any equity securities of the Company into any tender or exchange offer, (ii) sell (constructively or otherwise), transfer, pledge,
hypothecate, grant, encumber, assign or otherwise dispose of (collectively, Transfer), or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of, any Owned Shares or other equity
securities of the Company or any right, title or interest thereto or therein (including by operation of law) including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap
transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any equity securities of the Company and
(x) has, or would reasonably be expected to have, the effect of reducing or limiting such Rollover Shareholders economic interest in such Owned Shares or other equity securities of the Company and/or (y) grants a third party the
right to vote or direct the voting of such Owned Shares or other equity securities of the Company (any such transaction, a Derivative Transaction), (iii) deposit Owned Shares or any equity securities of the Company into a
voting trust or grant any proxy or power of attorney or enter into a voting agreement (other than that certain Voting Agreement of even date herewith by and among Parent and certain shareholders of the Company thereto (the Voting
Agreement)) with respect to any Owned Shares or other equity securities of the Company, (iv) knowingly take any action that would make any representation or warranty of such Rollover Shareholder set forth in this Agreement untrue or
incorrect or have the effect of preventing, disabling, or delaying such Rollover Shareholder from performing any of his, her, or its obligations under this Agreement, or (v) agree (whether or not in writing) to take any of the actions referred
to in the foregoing clauses (i) through (iv). In addition, each Rollover Shareholder covenants and agrees, severally and not jointly, that from the date hereof until the Closing, such Rollover Shareholder shall not carry out any of the actions
referred to in the foregoing clauses (i) through (iv) without obtaining prior written approval from the Company. Any purported Transfer in violation of this paragraph shall be void.
2
(b) Each Rollover Shareholder covenants and agrees, severally and not jointly, that such
Rollover Shareholder shall promptly (and in any event within twenty-four (24) hours) notify Parent of any new Shares with respect to which beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by such Rollover
Shareholder, including, without limitation, by purchase, as a result of a share dividend, share split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities of the
Company, if any, after the date hereof. Subject to the following sentence, any such Shares shall automatically become subject to the terms of this Agreement, and Part II of Schedule A and Schedule B hereto shall be deemed amended
accordingly. Notwithstanding the foregoing, other than the Rollover Shares, no such Shares as may be acquired by Mambo Fiesta Limited from time to time following the date hereof shall be automatically subject to the terms of this Agreement without
prior written consent from all Rollover Shareholders.
Section 6. Representations and Warranties of the Rollover Shareholders. To
induce Parent to accept the Rollover Shares and issue the Parent Shares, each Rollover Shareholder makes the following representations and warranties, severally and not jointly, to Parent, each and all of which shall be true and correct as of the
date of this Agreement and as of the Closing:
(a) Ownership of Shares. (i) Such Rollover Shareholder (A) is and,
immediately prior to the Closing will be, the beneficial owner of, and has and will have good and valid title to, the Owned Shares set forth opposite its name in Part II on Schedule A hereto, free and clear of Liens other than as created
by this Agreement and the Voting Agreement, and (B) has and will have sole or shared (together with Affiliates controlled by such Rollover Shareholder) voting power, power of disposition, and power to demand dissenters rights (if
applicable), in each case with respect to all of such securities, with no limitations, qualifications, or restrictions on such rights, subject to applicable United States federal securities laws, laws of the Cayman Islands, laws of the British
Virgin Islands, laws of the Peoples Republic of China and the terms of this Agreement and the Voting Agreement; (ii) such Rollover Shareholders Owned Shares are not subject to any voting trust agreement or other Contract to which
such Rollover Shareholder is a party restricting or otherwise relating to the voting or Transfer of such Rollover Shareholders Owned Shares other than this Agreement and the Voting Agreement; and (iii) such Rollover Shareholder has not
Transferred any of such Rollover Shareholders Owned Shares pursuant to any Derivative Transaction. As of the date hereof, other than as set forth in Part I on Schedule A hereto, such Rollover Shareholder does not own, beneficially or of
record, any Shares, securities of the Company, or any direct or indirect interest in any such securities (including by way of derivative securities). Such Rollover Shareholder has not appointed or granted any proxy or power of attorney that is still
in effect with respect to any of such Rollover Shareholders Owned Shares, except as contemplated by this Agreement or the Voting Agreement.
3
(b) Organization, Standing and Authority. Each such Rollover Shareholder has full legal
right, power, capacity and authority to execute and deliver this Agreement, to perform such Rollover Shareholders obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed
and delivered by such Rollover Shareholder. Assuming due authorization, execution and delivery by Parent, this Agreement constitutes a legal, valid and binding obligation of such Rollover Shareholder, enforceable against such Rollover Shareholder in
accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally and by general principles of equity (regardless of whether
considered in a proceeding in equity or at law). If such Rollover Shareholder is married, and any of such Rollover Shareholders Owned Shares constitute community property or otherwise need spousal or other approval for this Agreement to be
legal, valid and binding, this Agreement has been duly and validly executed and delivered by such Rollover Shareholders spouse and, assuming due authorization, execution and delivery by Parent, constitutes a legal, valid and binding obligation
of such Rollover Shareholders spouse, enforceable against such Rollover Shareholders spouse in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(c) Consents and Approvals; No Violations. Except for the applicable requirements of the Exchange Act, (i) no filing with, and no
permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of such Rollover Shareholder for the execution, delivery and performance of this Agreement by such Rollover Shareholder or the consummation by such
Rollover Shareholder of the transactions contemplated hereby and (ii) neither the execution, delivery or performance of this Agreement by such Rollover Shareholder nor the consummation by such Rollover Shareholder of the transactions
contemplated hereby, nor compliance by such Rollover Shareholder with any of the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of any such Rollover Shareholder which is an entity,
(B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a Lien on property or assets of such Rollover Shareholder pursuant to any Contract to which such Rollover Shareholder is a party or by which such Rollover Shareholder or any property or asset of such Rollover Shareholder
is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Rollover Shareholder or any of such Rollover Shareholders properties or assets.
4
(d) Litigation. There is no Action pending against any such Rollover Shareholder or, to
the knowledge of such Rollover Shareholder, any other Person or, to the knowledge of such Rollover Shareholder, threatened against any such Rollover Shareholder or any other Person that restricts or prohibits (or, if successful, would restrict or
prohibit) the performance by such Rollover Shareholder of his, her or its obligations under this Agreement.
(e) Reliance. Such
Rollover Shareholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Rollover Shareholders execution, delivery and performance of this Agreement.
(f) Receipt of Information. Such Rollover Shareholder acknowledges that such Rollover Shareholder has been advised to discuss with
his, her or its own counsel the meaning and legal consequences of such Rollover Shareholders representations and warranties in this Agreement and the transactions contemplated hereby.
Section 7. Representations and Warranties of Parent. Parent represents and warrants to each Rollover Shareholder that:
(a) Organization, Standing and Authority. Parent is duly organized, validly existing and in good standing under the laws of the Cayman
Islands and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by Parent and, assuming due authorization, execution
and delivery by the Rollover Shareholders subject to the proviso in Section 10(l), constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(b) Consents and Approvals; No Violations. Except for the applicable requirements of the Exchange Act and laws of the Cayman Islands,
(i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of Parent for the execution, delivery and performance of this Agreement by Parent or the consummation by Parent of the
transactions contemplated hereby and (ii) neither the execution, delivery or performance of this Agreement by Parent nor the consummation by Parent of the transactions contemplated hereby nor compliance by Parent with any of the provisions
hereof shall (A) conflict with or violate any provision of the organizational documents of Parent, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of Parent pursuant to, any Contract to which Parent is a party or by which such
Parent or any property or asset of Parent is bound or affected, (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent or any of Parents properties or assets.
5
(c) Issuance of Parent Shares. At and immediately after the Closing, the authorized
capital stock of Parent shall consist of 500,000,000 ordinary shares, of which, at and immediately after the Closing, 39,320,194 ordinary shares shall be issued and outstanding and owned of record as set forth on Schedule B hereto. At and
immediately after the Closing, there shall be (i) no options, warrants, or other rights to acquire share capital of Parent, (ii) no outstanding securities exchangeable for or convertible into share capital of Parent, and (iii) no
outstanding rights to acquire or obligations to issue any such options, warrants, rights or securities. The Parent Shares will be duly authorized, validly issued, fully paid and nonassessable, and free and clear of all Liens, preemptive rights,
rights of first refusal, subscription and similar rights (other than those arising under any agreements entered into at the Closing by all of the Rollover Shareholders) when issued.
Section 8. Termination. This Agreement, and the agreement of the Rollover Shareholders to the cancellation of the
Rollover Shares, will terminate immediately upon the valid termination of the Merger Agreement in accordance with its terms; provided, that this Section 8 and Section 10 shall survive the termination of this Agreement.
Nothing in this Section 8 shall relieve or otherwise limit any partys liability for any breach of this Agreement prior to the termination of this Agreement.
Section 9. Further Assurances. Each Rollover Shareholder hereby covenants that, from time to time, such Rollover
Shareholder will do, execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered, such further acts, conveyances, transfers, assignments, powers of attorney and assurances necessary to cancel all of the Rollover
Shares in accordance with the terms of this Agreement.
Section 10. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing (in the English language) and shall be deemed duly
given (i) upon receipt if delivered personally, or if by email or facsimile, upon confirmation of receipt by email or facsimile, (ii) one Business Day after being sent by express courier service, or (iii) three Business Days after
being sent by registered or certified mail, return receipt requested. All notices hereunder shall be delivered to the addresses set forth on the signature pages hereto under each partys name, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.
(b) Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.
(c) Entire Agreement. This Agreement, the Merger Agreement, the Voting Agreement and other documents and instruments and other
agreements as contemplated by or referred to herein and therein embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and thereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
6
(d) Specific Performance. Each Rollover Shareholder acknowledges and agrees that monetary
damages would not be an adequate remedy in the event that any covenant or agreement of such Rollover Shareholder in this Agreement is not performed in accordance with its terms, and therefore agrees that, in addition to and without limiting any
other remedy or right available to Parent and Merger Sub, Parent and Merger Sub will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and
enforcing specifically the terms and provisions hereof. Each Rollover Shareholder agrees not to oppose the granting of such relief in the event a court determines that such a breach has occurred, and to waive any requirement for the securing or
posting of any bond in connection with such remedy. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by Parent and Merger Sub shall not preclude the simultaneous or later exercise of any other such right, power or remedy by Parent.
(e) Amendments; Waivers. Except for Section 5 hereof which requires consent of the Shareholders, Parent and the Company
for any amendment or waiver, at any time prior to the Expiration Time, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Shareholders,
Parent, or in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
(f) Governing Law. This
Agreement and the schedules hereto shall be governed and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other
jurisdiction.
(g) Dispute Resolution; Jurisdiction; Enforcement. All actions arising under the laws of the State of New York out
of or relating to this Agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of The City of New York, provided, however, that if such federal court does not have jurisdiction over such
action, such action shall be heard and determined exclusively in any New York state court sitting in the Borough of Manhattan of The City of New York. Each of the parties hereto agrees that mailing of process or other papers in connection with any
such action in the manner provided in Section 10(a) hereof or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby (a) submits to the exclusive
jurisdiction of any federal or state court sitting in the Borough of Manhattan of The City of New York for the purpose of any action arising under the laws of the State of New York out of or relating to this Agreement brought by any party hereto and
(b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of
any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in
accordance with this Section 10(g), (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable law, any claim that (A) the action in such court is brought in an inconvenient
forum, (B) the venue of such action is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
7
(h) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE
PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(h).
(i) No Third-Party Beneficiaries. Except for Section 5 for which the Company is a third-party beneficiary, there are no
third party beneficiaries of this Agreement and nothing in this Agreement, express or implied, is intended to or shall confer on any person other than the parties hereto (and their respective successors, heirs and permitted assigns), any rights,
remedies, obligations or liabilities, except as specifically set forth in this Agreement.
(j) Assignment; Binding Effect. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except that Parent may assign
this Agreement (in whole but not in part) in connection with a permitted assignment of the Merger Agreement by Parent, as applicable. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns and, in the case of each Rollover Shareholder, his or its estate, heirs, beneficiaries, personal representatives and executors.
(k) No Presumption Against Drafting Party. Each of the parties to this Agreement acknowledges that it or he has been represented by
independent counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the
drafting party has no application and is expressly waived.
(l) Counterparts. This Agreement may be executed in two or more
consecutive counterparts (including by facsimile or email pdf format), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more
counterparts have been signed by each of the parties and delivered (by telecopy, email pdf format or otherwise) to the other parties; provided, however, that if any of the Rollover Shareholders fails for any reason to execute, or perform their
obligations under, this Agreement, this Agreement shall remain effective as to all parties executing this Agreement.
8
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
|
|
|
|
|
PARENT |
|
AirMedia Holdings Ltd. |
|
|
By: |
|
/s/ Herman Man Guo |
|
|
Name: |
|
Herman Man Guo |
|
|
Title: |
|
Director |
|
17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
[Signature Page To
Rollover Agreement]
|
|
|
|
|
ROLLOVER SHAREHOLDERS |
|
Wealthy Environment Limited |
|
|
By: |
|
/s/ Herman Man Guo |
|
|
Name: |
|
Herman Man Guo |
|
|
Title: |
|
Director |
|
17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Dan Shao |
|
/s/ Dan Shao |
|
c/o 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Global Earning Pacific Limited |
|
|
By: |
|
/s/ Dan Shao |
|
|
Name: |
|
Dan Shao |
|
|
Title: |
|
Director |
|
c/o 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Mambo Fiesta Limited |
|
|
By: |
|
/s/ Qing Xu |
|
|
Name: |
|
Qing Xu |
|
|
Title: |
|
Director |
|
c/o Qing Xu, 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China] |
[Signature Page To
Rollover Agreement]
Schedule A
Part I
Shares and ADSs Beneficially Owned by Rollover
Shareholders
|
|
|
|
|
|
|
|
|
Shareholder |
|
Owned Shares |
|
|
|
Shares Held of Record |
|
|
Shares Represented by ADSs |
|
Wealthy Environment Limited |
|
|
16,105,980 |
|
|
|
1,400,000 |
|
Dan Shao |
|
|
None |
|
|
|
584,214 |
|
Global Earning Pacific Limited |
|
|
20,000,000 |
|
|
|
None |
|
Mambo Fiesta Limited |
|
|
2,000,000 |
|
|
|
None |
|
Part II
Rollover Shares
|
|
|
|
|
|
|
|
|
Shareholder |
|
Owned Shares |
|
|
|
Shares Held of Record |
|
|
Shares Represented by ADSs |
|
Wealthy Environment Limited |
|
|
16,105,980 |
|
|
|
1,400,000 |
|
Dan Shao |
|
|
None |
|
|
|
584,214 |
|
Global Earning Pacific Limited |
|
|
20,000,000 |
|
|
|
None |
|
Mambo Fiesta Limited |
|
|
1,000,000 |
|
|
|
None |
|
A-1
Schedule B
PARENT SHARES AT AND IMMEDIATELY AFTER
THE CLOSING
|
|
|
|
|
Parent Shares |
|
|
Shareholders * |
|
12,605,980 |
|
|
Wealthy Environment Limited |
|
20,584,214 |
|
|
Global Earning Pacific Limited |
|
1,000,000 |
|
|
Mambo Fiesta Limited |
|
5,130,000 |
|
|
ESOP SPV |
* |
Any individual or entity shareholder named herein may, at his/her/its sole discretion, name any affiliate(s) to take his/her/its place as direct record holders of Parent Shares at and immediately after the Closing.
|
B-1
Exhibit H
Execution Version
VOTING
AGREEMENT
This VOTING AGREEMENT (this Agreement) is entered into as of September 29, 2015 by and among
AirMedia Holdings Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (Parent), and the shareholders of AirMedia Group Inc., an exempted company with limited liability incorporated
under the laws of the Cayman Islands (the Company) listed on Schedule A hereto (each, a Shareholder and collectively, the Shareholders). Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, Parent, AirMedia Merger Company Limited, an
exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly owned subsidiary of Parent (Merger Sub), and the Company have, concurrently with the execution of this Agreement, entered into
an Agreement and Plan of Merger, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the Merger Agreement), which provides, among other things, for the merger of Merger Sub with
and into the Company, with the Company continuing as the surviving corporation and a wholly owned subsidiary of Parent (the Merger), upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Shareholder is the beneficial owner (as defined under Rule 13d-3 of the Exchange Act) of (i) certain
ordinary shares, par value US$0.001 per share, of the Company (the Shares) (including Shares represented by ADSs that, each represent two Shares) as set forth in the column titled Owned Shares opposite such
Shareholders name on Part I of Schedule A hereto (the Owned Shares), and (ii) certain Company Share Awards to acquire Shares as set forth in the column titled Company Options opposite such
Shareholders name on Part I of Schedule A hereto (such Owned Shares and Company Share Awards, together with any other Shares acquired (whether beneficially or of record) by the Shareholder after the date hereof and prior to the earlier of the
Effective Time and the termination of all of the Shareholders obligations under this Agreement, including any Shares acquired by means of purchase, dividend or distribution, or issued upon the exercise of any Company options or warrants or the
conversion of any convertible securities or otherwise, being collectively referred to herein as the Securities);
WHEREAS, Parent and certain Shareholders have, concurrently with the execution of this Agreement, entered into a Rollover Agreement, dated as
of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the Rollover Agreement), which provides, among other things, for the cancellation of certain of the Securities beneficially owned by
certain Shareholders for no Merger Consideration and subscription of newly issued ordinary shares of Parent immediately prior to the Closing:
WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger Agreement and consummate the transactions contemplated thereby,
including the Merger, the Shareholders are entering into this Agreement; and
WHEREAS, the Shareholders acknowledge that Parent and Merger Sub are entering into the Merger
Agreement in reliance on the representations, warranties, covenants and other agreements of the Shareholders set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING; GRANT AND APPOINTMENT OF PROXY
Section 1.1 Voting. From and after the date hereof until the earlier of (i) the Effective Time and (ii) the
termination of the Merger Agreement pursuant to and in compliance with the terms therein (such earlier time, the Expiration Time), each Shareholder irrevocably and unconditionally hereby agrees that at the Shareholders
Meeting or other annual or extraordinary general meeting of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) (f) hereof is to be considered (and any adjournment or postponement
thereof), or in connection with any written resolution of the Companys shareholders, such Shareholder shall (i) cause its or his representative(s) to appear at such meeting or otherwise cause its or his Securities to be counted as present
thereat for purposes of determining whether a quorum is present and (ii) vote or cause to be voted (including by proxy or written resolution, if applicable) all of such Shareholders Securities as set forth in Part II of Schedule A (such
Securities, the Voting Securities):
(a) for authorization and approval of the Merger Agreement and the transactions
contemplated by the Merger Agreement,
(b) against any Competing Transaction or any other transaction, proposal, agreement or action made
in opposition to authorization and approval of the Merger Agreement or in competition or inconsistent with the Merger and the other transactions contemplated by the Merger Agreement,
(c) against any other action, agreement or transaction that is intended, that could reasonably be expected, or the effect of which could
reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement or the performance by such Shareholder
of its or his obligations under this Agreement, including, without limitation: (i) any extraordinary corporate transaction, such as a scheme of arrangement, merger, consolidation or other business combination involving the Company or any of its
Subsidiaries (other than the Merger); (ii) a sale, lease or transfer of a material amount of assets of the Company or any of its Subsidiaries or a reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries;
(iii) an election of new members to the board of directors of the Company, other than nominees to the board of directors of the Company who are serving as directors of the Company on the date of this Agreement or as may be otherwise provided in
the Merger Agreement; (iv) any material change in the present capitalization or dividend policy of the Company or any amendment or other change to the Companys memorandum or articles of association, except if approved in writing by
Parent; or (v) any other action that would require the consent of Parent pursuant to Section 5.01 of the Merger Agreement, except if approved in writing by Parent,
(d) against any action, proposal, transaction or agreement that would reasonably be expected to
result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such Shareholder contained in this Agreement,
(e) in favor of any adjournment or postponement of the Shareholders Meeting as may be reasonably requested or approved in writing by
Parent, and
(f) in favor of any other matter necessary to effect the transactions contemplated by the Merger Agreement.
Section 1.2 Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Shareholder hereby irrevocably appoints Parent and any designee thereof as its or his proxy and attorney-in-fact (with full power of
substitution), to vote or cause to be voted (including by proxy or written resolution, if applicable) the Voting Securities in accordance with Section 1.1 above at the Shareholders Meeting or other annual or special meeting of the
shareholders of the Company, however called, including any adjournment or postponement thereof, at which any of the matters described in Section 1.1 above is to be considered. Each Shareholder represents that all proxies, powers of
attorney, instructions or other requests given by such Shareholder prior to the execution of this Agreement in respect of the voting of such Shareholders Voting Securities, if any, are not irrevocable and each Shareholder hereby revokes (or
causes to be revoked) any and all previous proxies, powers of attorney, instructions or other requests with respect to such Shareholders Voting Securities. Each Shareholder shall take such further action or execute such other instruments as
may be necessary to effectuate the intent of this proxy.
(b) Each Shareholder affirms that the irrevocable proxy set forth in this
Section 1.2 is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Shareholder under this Agreement. Each Shareholder further affirms
that the irrevocable proxy is coupled with an interest and, except as set forth in this Section 1.2, is intended to be irrevocable prior to the Expiration Time. If for any reason the proxy granted herein is not irrevocable, then each
Shareholder agrees to vote such Shareholders Voting Securities in accordance with Section 1.1 above prior to the Expiration Time. The parties agree that the foregoing is a voting agreement.
Section 1.3 Restrictions on Transfers. Except as provided for in the Rollover
Agreement or pursuant to the Merger Agreement, each Shareholder hereby agrees that, from the date hereof until the Expiration Time, such Shareholder shall not, directly or indirectly, (a) sell (constructively or otherwise), transfer, assign,
tender in any tender or exchange offer, pledge, grant, encumber, hypothecate or similarly dispose of (by merger, testamentary disposition, operation of law or otherwise) (collectively, Transfer), either voluntarily or
involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any Voting Securities, including, without limitation, any swap transaction, option, warrant, forward purchase or sale
transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any
Voting Securities and (i) has, or would reasonably be expected to have, the effect of reducing or limiting such Shareholders economic interest in such Voting Securities and/or (ii) grants a third party the right to vote or direct the
voting of such Voting Securities (any such transaction, a Derivative Transaction), (b) deposit any Voting Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney
with respect thereto that is inconsistent with this Agreement, (c) convert or exchange, or take any action which would result in the conversion or exchange, of any Voting Securities, (d) knowingly take any action that would make any
representation or warranty of such Shareholder set forth in this Agreement untrue or incorrect or have the effect of preventing, disabling, or delaying such Shareholder from performing any of its or his obligations under this Agreement, or
(e) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a), (b) (c) or (d).
ARTICLE II
NO
SOLICITATION
Section 2.1 Restricted Activities. Prior to the Expiration Time, each Shareholder, solely in its
or his capacity as a shareholder of the Company, shall not, and shall cause such Shareholders officers, directors, employees, agents, advisors and other representatives (in each case, acting in their capacity as such to such Shareholder (the
Shareholders Representatives)) not to, in each case, directly or indirectly, take any action that the Company is prohibited from taking under Section 6.04 of the Merger Agreement.
Section 2.2 Notification. From and after the date hereof until the Expiration Time, each Shareholder shall promptly advise
each of Parent and the Company in writing of (a) any Competing Transaction, (b) any request such Shareholder receives in its or his capacity as a shareholder of the Company for non-public information relating to the Company, any of its
Subsidiaries or the Merger, and (c) any inquiry or request for discussion or negotiation such Shareholder receives in its or his capacity as a shareholder of the Company regarding a Competing Transaction, including in each case the identity of
the Person making any such Competing Transaction or indication or inquiry and the terms of any such Competing Transaction or indication or inquiry (including, if applicable, copies of any written requests, proposals or offers, including proposed
agreements). Each Shareholder, in its or his capacity as a shareholder of the Company, shall keep Parent reasonably informed on a reasonably current basis of the status and terms (including any material changes to the terms thereof) of any such
Competing Transaction or indication or inquiry (including, if applicable, any revised copies of written requests, proposals and offers) and the status of any such discussions or negotiations to the extent known by such Shareholder. This
Section 2.2 shall not apply to any Competing Transaction received by the Company. Each Shareholders receipt, in its or his capacity as a shareholder of the Company, of any Competing Transaction shall not relieve such Shareholder
from any of its or his obligations hereunder.
Section 2.3 Capacity. Notwithstanding anything to the contrary in this
Agreement, (i) each Shareholder is entering into this Agreement, and agreeing to become bound hereby, solely in its or his capacity as a beneficial owner of the Securities owned by such Shareholder and not in any other capacity (including
without limitation any capacity as a director or officer of the Company) and (ii) nothing in this Agreement shall in any way limit or affect any actions taken by any shareholder of the Shareholder, or any trustee of any shareholder of the
Shareholder, or obligate such Person to take, or forbear from taking, in his capacity as a director or officer of the Company, any action which is inconsistent with its or his fiduciary duties under the applicable Laws.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SHAREHOLDERS
Section 3.1 Representations and Warranties. Each Shareholder, severally and not jointly, represents and warrants to Parent as of
the date hereof and as of the Closing:
(a) such Shareholder has full legal right, power, capacity and authority to execute and deliver
this Agreement, to perform such Shareholders obligations hereunder and to perform the actions contemplated hereby;
(b) this
Agreement has been duly executed and delivered by such Shareholder and the execution, delivery and performance of this Agreement by such Shareholder and the performance of the actions contemplated hereby have been duly authorized by all necessary
action on the part of such Shareholder and no other actions or proceedings on the part of such Shareholder are necessary to authorize this Agreement or to perform the actions contemplated hereby;
(c) assuming due authorization, execution and delivery by Parent, this Agreement constitutes a legal, valid and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally and by
general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) (i) such Shareholder (A) is
and, immediately prior to the Closing, will be the beneficial owner of, and has and will have good and valid title to, the Securities, free and clear of Liens other than as created by this Agreement, and (B) has and will have sole or shared
(together with affiliates controlled by such Shareholder) voting power, power of disposition, and power to demand dissenters rights (if applicable), in each case with respect to all of the Securities, with no limitations, qualifications, or
restrictions on such rights, subject to applicable United States federal securities laws, laws of the Cayman Islands, laws of the British Virgin Islands, laws of the Peoples Republic of China and the terms of this Agreement; (ii) the
Securities are not subject to any voting trust agreement or other Contract to which such Shareholder is a party restricting or otherwise relating to the voting or Transfer of the Voting Securities other than this Agreement and the Rollover
Agreement, as applicable; (iii) such Shareholder has not Transferred any Securities pursuant to any Derivative Transaction; (iv) as of the date hereof, other than as set forth on Schedule A hereto, such Shareholder does not own,
beneficially or of record, any Shares, securities of the Company, or any direct or indirect interest in any such securities (including by way of derivative securities); and (v) such Shareholder has not appointed or granted any proxy or power of
attorney that is still in effect with respect to any Securities, except as contemplated by this Agreement;
(e) except for the applicable requirements of the Exchange Act, neither the execution, delivery
or performance of this Agreement by such Shareholder nor the performance by such Shareholder of the actions contemplated hereby, nor compliance by such Shareholder with any of the provisions hereof shall (A) conflict with or violate any
provision of the organizational documents of any such Shareholder which is an entity, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on property or assets of such Shareholder pursuant to any Contract to which such Shareholder is a party or by which such
Shareholder or any property or asset of such Shareholder is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Shareholder or any of such Shareholders properties or
assets;
(f) there is no Action pending against any such Shareholder or, to the knowledge of such Shareholder, any other Person or, to the
knowledge of such Shareholder, threatened against any such Shareholder or any other Person that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by such Shareholder of its or his obligations under this
Agreement;
(g) such Shareholder acknowledges that such Shareholder has been advised to discuss with its or his own counsel the meaning
and legal consequences of such Shareholders representations and warranties in this Agreement and the actions contemplated hereby; and
(h) each Shareholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such
Shareholders execution, delivery and performance of this Agreement.
Section 3.2 Covenants. Each Shareholder hereby:
(a) agrees, prior to the Expiration Time, not to knowingly take any action that would make any representation or warranty of such
Shareholder contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the performance by such Shareholder of its or his obligations under this Agreement;
(b) irrevocably waives, and agrees not to exercise, any rights of appraisal or rights of dissent from the Merger that such Shareholder may
have with respect to such Shareholders Securities (including without limitation any rights under Section 238 of the CICL) prior to the Expiration Time;
(c) agrees to permit the Company to publish and disclose in the Proxy Statement (including all
documents filed with the SEC in accordance therewith), such Shareholders identity and beneficial ownership of Shares and Company Share Awards or other equity securities of the Company and the nature of such Shareholders commitments,
arrangements and understandings under this Agreement and the Rollover Agreement, as applicable;
(d) agrees and covenants, severally and
not jointly, that such Shareholder shall promptly (and in any event within twenty-four (24) hours) notify Parent of any new Shares with respect to which beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by
such Shareholder, including, without limitation, by purchase, as a result of a share dividend, share split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities of the
Company after the date hereof (any such Shares shall automatically become subject to the terms of this Agreement, and Schedule A hereto shall be deemed amended accordingly); and
(e) agrees further that, upon request of Parent, such Shareholder shall execute and deliver any additional documents, consents or instruments
and take such further actions as may reasonably be deemed by Parent to be necessary or desirable to carry out the provisions of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Section 4.1 Representations and Warranties. Parent hereby represents and warrants to each Shareholder as follows: (a) this
Agreement has been duly and validly authorized by Parents board of directors, (b) this Agreement has been duly executed and delivered by a duly authorized officer or other representative of Parent, and (c) assuming this Agreement
constitutes a valid and binding agreement of Shareholders, this Agreement constitutes a valid and binding agreement of Parent, enforceable against Parent in accordance with its terms, and (d) the execution and delivery of this Agreement by
Parent does not, and the performance of the actions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any law or agreement binding upon Parent, nor require any authorization, consent or approval of,
or filing with, any Governmental Authority, except for filings with the SEC.
ARTICLE V
TERMINATION
This
Agreement, and the obligations of the Shareholders hereunder (including, without limitation, Section 1.2 hereof), shall terminate and be of no further force or effect immediately upon the earlier to occur of (a) the Closing and
(b) the date of termination of the Merger Agreement in accordance with its terms. Notwithstanding the preceding sentence, this Article V and Article VI shall survive any termination of this Agreement. Nothing in this Article
V shall relieve or otherwise limit any partys liability for any breach of this Agreement prior to the termination of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. All notices and other communications hereunder shall be in writing (in the English language) and shall be
deemed duly given (a) upon receipt if delivered personally, or if by email or facsimile, upon confirmation of receipt by email or facsimile, (b) one Business Day after being sent by express courier service, or (c) three Business Days
after being sent by registered or certified mail, return receipt requested. All notices hereunder shall be delivered to the address set forth on the signature pages hereto under each partys name, or pursuant to such other instructions as may
be designated in writing by the party to receive such notice.
Section 6.2 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.
Section 6.3 Entire Agreement. This Agreement, the Merger Agreement, the Rollover Agreement and other documents and instruments and
other agreements as contemplated by or referred to herein and therein together embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and thereof and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
Section 6.4 Specific Performance. Each Shareholder acknowledges and agrees that monetary damages would not be an adequate remedy
in the event that any covenant or agreement of such Shareholder in this Agreement is not performed in accordance with its terms, and therefore agrees that, in addition to and without limiting any other remedy or right it may have, Parent, Merger Sub
and the Company, will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof. Each
Shareholder agrees not to oppose the granting of such relief in the event a court determines that such a breach has occurred, and to waive any requirement for the securing or posting of any bond in connection with such remedy. All rights, powers,
and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by Parent, Merger Sub or the Company shall
not preclude the simultaneous or later exercise of any other such right, power or remedy by such entity.
Section 6.5 Amendments;
Waivers. At any time prior to the Expiration Time, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Shareholders, Parent and the
Company, or in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by Parent, Merger Sub or the Company in exercising any right hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
Section 6.6 Governing Law. This Agreement and the schedules hereto shall be governed
and construed in accordance with the laws of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of any other jurisdiction.
Section 6.7 Dispute Resolution; Jurisdiction; Enforcement. All actions arising under the laws of the State of New York out
of or relating to this Agreement shall be heard and determined exclusively in any New York federal court sitting in the Borough of Manhattan of The City of New York, provided, however, that if such federal court does not have jurisdiction over such
action, such action shall be heard and determined exclusively in any New York state court sitting in the Borough of Manhattan of The City of New York. Each of the parties hereto agrees that mailing of process or other papers in connection with any
such action in the manner provided in Section 6.1 hereof or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby (a) submits to the exclusive
jurisdiction of any federal or state court sitting in the Borough of Manhattan of The City of New York for the purpose of any action arising under the laws of the State of New York out of or relating to this Agreement brought by any party hereto and
(b) irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of
any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason other than the failure to serve process in
accordance with this Section 6.7, (ii) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) to the fullest extent permitted by applicable law, any claim that (A) the action in such court is brought in an inconvenient
forum, (B) the venue of such action is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 6.8 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE ACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND PERFORM THE ACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.8.
Section 6.9 Third Party Beneficiaries. The Company is an intended third party
beneficiary of this Agreement, with full rights of enforcement of this Agreement against the Shareholders. Other than as set forth in the preceding sentence, there are no other third party beneficiaries of this Agreement and nothing in this
Agreement, express or implied, is intended to or shall confer on any person other than the parties hereto (and their respective successors, heirs and permitted assigns), any rights, remedies, obligations or liabilities, except as specifically set
forth in this Agreement.
Section 6.10 Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties and the Company, except that Parent may assign this Agreement (in whole but not in
part) in connection with a permitted assignment of the Merger Agreement by Parent, as applicable. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns and, in the case of each Shareholder, his, her or its estate, heirs, beneficiaries, personal representatives and executors. Parent shall cause Merger Sub, and any assignee thereof, to perform its obligations under
this Agreement and shall be responsible for any failure of Merger Sub or such assignee to comply with provision of this Agreement applicable to Merger Sub.
Section 6.11 No Presumption Against Drafting Party. Each of the parties to this Agreement acknowledges that it or he has been
represented by independent counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this
Agreement against the drafting party has no application and is expressly waived.
Section 6.12 Counterparts. This Agreement
may be executed in two or more consecutive counterparts (including by facsimile or email pdf format), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become
effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy, email pdf format or otherwise) to the other parties; provided, however, that if any of the Shareholders fails for any reason to execute, or
perform their obligations under, this Agreement, this Agreement shall remain effective as to all parties executing this Agreement.
[Signature Pages to follow]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
|
|
|
|
|
PARENT |
|
AirMedia Holdings Ltd. |
|
|
By: |
|
/s/ Herman Man Guo |
|
|
Name: |
|
Herman Man Guo |
|
|
Title: |
|
Sole Director |
|
c/o AirMedia Group Inc., 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
[Signature Page to
Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
|
|
|
|
|
SHAREHOLDERS |
|
Herman Man Guo |
|
/s/ Herman Man Guo |
|
c/o AirMedia Group Inc., 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Wealthy Environment Limited |
|
|
By: |
|
/s/ Herman Man Guo |
|
|
Name: |
|
Herman Man Guo |
|
|
Title: |
|
Director |
|
17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Dan Shao |
|
/s/ Dan Shao |
|
c/o 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
[Signature Page to
Voting Agreement]
|
|
|
|
|
Global Earning Pacific Limited |
|
|
By: |
|
/s/ Dan Shao |
|
|
Name: |
|
Dan Shao |
|
|
Title: |
|
Director |
|
c/o 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Qing Xu |
|
/s/ Qing Xu |
|
c/o AirMedia Group Inc., 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Mambo Fiesta Limited |
|
|
By: |
|
/s/ Qing Xu |
|
|
Name: |
|
Qing Xu |
|
|
Title: |
|
Director |
|
c/o Qing Xu, 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, the Peoples Republic of China |
|
Bison Capital Media Limited |
|
|
By: |
|
/s/ Peixin Xu |
|
|
Name: |
|
Peixin Xu |
|
|
Title: |
|
Director |
|
c/o Bison Capital Holding Company Limited, 609-610, 21st Century Tower, 40 Liangmaqiao Road, Chaoyang District, Beijing, Peoples Republic of China, 100016 |
[Signature Page to
Voting Agreement]
SCHEDULE A
Part I
Shares, ADSs and Share Awards Beneficially
Owned by Shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholder |
|
Owned Shares |
|
|
Company Options (Shares Issuable upon Exercise of Share Awards) |
|
|
|
Shares Held of Record |
|
|
Shares Represented by ADSs |
|
|
|
|
Herman Man Guo |
|
|
None |
|
|
|
None |
|
|
|
2,000,000 |
|
Wealthy Environment Limited |
|
|
16,105,980 |
|
|
|
1,400,000 |
|
|
|
None |
|
Dan Shao |
|
|
None |
|
|
|
584,214 |
|
|
|
None |
|
Global Earning Pacific Limited |
|
|
20,000,000 |
|
|
|
None |
|
|
|
None |
|
Qing Xu |
|
|
None |
|
|
|
None |
|
|
|
600,000 |
|
Mambo Fiesta Limited |
|
|
2,000,000 |
|
|
|
None |
|
|
|
None |
|
Bison Capital Media Limited |
|
|
16,040,000 |
|
|
|
None |
|
|
|
None |
|
Part II
Voting
Securities
|
|
|
|
|
|
|
|
|
Shareholder |
|
Shares Held of Record |
|
|
Shares Represented by ADSs |
|
Herman Man Guo |
|
|
None |
|
|
|
None |
|
Wealthy Environment Limited |
|
|
16,105,980 |
|
|
|
1,400,000 |
|
Dan Shao |
|
|
None |
|
|
|
584,214 |
|
Global Earning Pacific Limited |
|
|
20,000,000 |
|
|
|
None |
|
Mambo Fiesta Limited |
|
|
2,000,000 |
|
|
|
None |
|
Bison Capital Media Limited |
|
|
16,040,000 |
|
|
|
None |
|
A-1
Exhibit I
EXECUTION VERSION
CHINA
MERCHANTS BANK CO., LTD.,
NEW YORK BRANCH
535 Madison Ave., 18th Floor
New
York, NY 10022
CONFIDENTIAL
September 29, 2015
AirMedia Holdings Ltd.
AirMedia Merger Company Limited
17/F, Sky Plaza
No. 46 Dongzhimenwai Street
Dongcheng District, Beijing
10027
The Peoples Republic of China
Attention:
Richard Wu
Project Sky
Commitment Letter
Ladies and
Gentlemen:
You have advised China Merchants Bank Co., Ltd., New York Branch (CMB NY,
we, us or the Commitment Party) that AirMedia Holdings Ltd., a Cayman Islands exempted company (the Parent), formed at the direction of and
controlled by Mr. Herman Man Guo (the Sponsor), intends to consummate through AirMedia Merger Company Limited, a Cayman Islands exempted company (Merger Sub and together with Parent, you), the
Transactions described in the Transaction Description attached hereto as Exhibit A (the Transaction Description). Capitalized terms used but not defined herein shall have the meanings assigned to them in the
Transaction Description and the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the Term Sheet). This commitment letter, the Transaction Description and the Term Sheet, are collectively
referred to as the Commitment Letter.
In connection with the Transactions, CMB NY is pleased to
advise you of its commitment to provide 100% of the aggregate principal amount of the Term Facility, subject only to the satisfaction of the conditions set forth in Section 5 hereof, the section entitled Conditions to the Borrowing
in Exhibit B hereto (limited on the Closing Date (as defined below) as indicated therein) and in Exhibit C hereto. The Commitment Party is referred to herein as the Initial Lender. Closing
Date is the date on which the Acquisition has been consummated and the funding under the Term Facility has occurred.
1
It is agreed that (i) the Commitment Party will
act as the sole lead arranger for the Term Facility (the Lead Arranger) and the administrative agent (in such capacity, the Administrative Agent) and the off-shore collateral agent for the Term
Facility, and (ii) China Merchants Bank Co., Ltd., Beijing Branch (CMB BJ) will act as the on-shore collateral agent for the Term Facility. You agree that no other arrangers, agents or managers will be appointed, and
no other titles will be awarded unless you and the Lead Arranger shall so agree.
You hereby represent and warrant that (a) all written
information and written data (such information and data, other than (i) customary financial estimates, forecasts and other projections (the Projections) and forward looking statements and (ii) information of a
general economic or industry specific nature, the Information) (in the case of Information regarding the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge), that has been or
will be made available to the Commitment Party directly or indirectly by you, the Target or by any of your or their respective subsidiaries or representatives, in each case, on your or their behalf in connection with the transactions contemplated
hereby, is or will be, when furnished and taken as a whole, correct in all material respects and does not or will not, when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto provided to the Commitment Party from time to
time) and (b) the Projections that have been or will be made available to the Commitment Party by you or by any of your subsidiaries or representatives, in each case, on your behalf in connection with the transactions contemplated hereby have
been, or will be, prepared in good faith based upon assumptions that are believed by you to be reasonable at the time prepared and at the time the related Projections are so furnished to the Commitment Party; it being understood that the Projections
are as to future events and are not to be viewed as facts, the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular Projections will be
realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree that, if at any time prior to the Closing Date, you
become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and the Projections were being furnished, and such representations and warranties were being made, at
such time, then you will (or, with respect to the Information and Projections relating to the Target and its subsidiaries, will use your commercially reasonable efforts to) promptly supplement the Information and the Projections such that such
representations and warranties are correct in all material respects under those circumstances (or, in the case of the Information relating to the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge,
such representations and warranties are correct in all material respects under those circumstances). The accuracy of the foregoing representations shall not be a condition to our commitments hereunder or the funding of the Term Facility on the
Closing Date. In arranging the Term Facility, the Commitment Party (i) will be entitled to use and rely on the Information and the Projections without responsibility for independent verification thereof and (ii) assume no responsibility
for the accuracy or completeness of the Information or the Projections.
As consideration for the commitments of the Initial Lender
hereunder and for the agreement of the Lead Arranger to perform the services described herein, you agree to pay (or cause to be paid) the fees set forth in the Fee Letter dated the date hereof and delivered herewith with respect to the Term Facility
(the Fee Letter), if and to the extent payable in accordance with the terms thereof. Once paid, such fees shall not be refundable under any circumstances.
2
The commitment of the Initial Lender hereunder to fund the Term Facility on
the Closing Date and the agreement of the Lead Arranger to perform the services described herein are subject solely to the satisfaction of the conditions set forth in the section entitled Conditions to the Borrowing in Exhibit B
hereto (limited on the Closing Date as indicated therein) and in Exhibit C hereto, in each case subject to the applicable Limited Conditionality Provisions as defined below, and upon satisfaction (or waiver by the Commitment Party) of such
conditions, the funding of the Term Facility shall occur.
Notwithstanding anything to the contrary in this Commitment Letter (including
each of the exhibits attached hereto), the Fee Letter, the Term Facility Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties
the accuracy of which shall be a condition to the availability and funding of the Term Facility on the Closing Date shall be (a) such of the representations and warranties made by the Target, by the Target on behalf of its subsidiaries, or by
its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you (or your affiliates) have the right (taking into account any applicable cure provisions) to terminate your (and/or its)
obligations under the Acquisition Agreement or decline to consummate the Acquisition (in each case, in accordance with the terms thereof) as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent,
the Specified Acquisition Agreement Representations) and (b) the Specified Representations (as defined below), and (ii) the terms of the Term Facility Documentation shall be in a form such that they do not impair
the availability or funding of the Term Facility on the Closing Date if the conditions set forth in the section entitled Conditions to the Borrowing in Exhibit B hereto (limited on the Closing Date as indicated therein) and in
Exhibit C hereto are satisfied (or waived by the Commitment Party) (it being understood that (x) to the extent the perfection of any security interest in any Collateral is not or cannot be achieved on the Closing Date (other than
delivery of certificated equities issued by entities other than Target and any of its subsidiaries), after your use of commercially reasonable efforts to do so, then the perfection of the security interest in such Collateral shall not constitute a
condition precedent to the availability of the Term Facility on the Closing Date, but instead shall be required to be delivered after the Closing Date pursuant to arrangements and timing to be mutually agreed by the Administrative Agent and the
Borrower acting reasonably, but no later than (1) five business days after the Closing Date with respect to the delivery of the certificated equity securities of subsidiaries of Target and (2) otherwise, 30 days after the Closing Date (in
each case, or such longer period as may be agreed by the Administrative Agent and the Borrower acting reasonably); provided that with respect to security interest in the Collateral that may be perfected by means of the filing or registration
of a financing statement or the equivalent thereof under Cayman Islands, Hong Kong or British Virgin Islands laws, you shall have delivered, or caused to be delivered, on or prior to the Closing Date, such necessary financing statements or the
equivalent thereof and to irrevocably authorize, and to cause the applicable Security Grantors to irrevocably authorize, the Collateral Agents to file such financing statements or equivalent thereof, and (y) without limitation of clause
(x) above, with respect to security interests to be provided by the Target and any subsidiary of the Target that is required to provide security (other than the required deposits into the Cash Pledge Accounts which shall occur at least three
days prior to the Closing Date and the pledge of the Cash Pledge Accounts which shall become effective on the Closing Date), if such security interests cannot be provided (including, for the avoidance of doubt, any evidence of authorization,
opinions or customary closing certificates for such security providers) as a condition precedent solely because the directors or managers of the Target or such subsidiaries have not authorized such security interests and the election of new
directors or managers to authorize such security has not taken place prior to the funding of the Term Facility (such security interests, Duly Authorized Security), such election shall take place and such Duly Authorized
Security shall be provided within five business days of the Closing Date (or such longer period as may be agreed by the Administrative Agent). For purposes hereof, Specified Representations means, the applicable
representations and warranties applicable to the Guarantors, the Borrower (for the avoidance of doubt, excluding Target) and the Security Grantors (other than Target) (provided that Individual Grantors shall only be subject to those Specified
Representations relating to their guarantee and their grant of security in the Collateral, as applicable) to be set forth in the Term Facility Documentation relating to organizational existence; power and authority, due authorization, execution,
delivery and enforceability, in each case, related to, the entering into, borrowing under, guaranteeing under, performance of, and granting of security interests in the Collateral pursuant to, the Term Facility Documentation, Federal Reserve margin
regulations; Patriot Act; the use of the proceeds of the Term Facility not violating the Patriot Act, OFAC, FCPA or anti-money laundering laws; the Investment Company Act; the incurrence of the loans to be made under the Term Facility, and the
granting of the security interests in the Collateral to secure the Term Facility, and the entering into of the Term Facility Documentation, do not conflict with the organizational documents, or material laws; and, subject to the proviso in clause
(x) of the immediately preceding sentence, creation, validity and perfection of security interests in the Collateral. This paragraph, and the provisions herein, shall be referred to as the Limited Conditionality
Provisions.
3
To induce the Commitment Party, the Lead Arranger and the
Administrative Agent to enter into this Commitment Letter and the Fee Letter and to proceed with the Term Facility Documentation, you agree (a) to indemnify and hold harmless the Commitment Party, the Lead Arranger, the Administrative Agent,
their respective affiliates and the respective officers, directors, employees, agents, controlling persons, advisors and other representatives of each of the foregoing and their successors and permitted assigns (each, an Indemnified
Person), from and against any and all losses, claims, damages and liabilities of any kind or nature and reasonable and documented or invoiced out-of-pocket fees and expenses, joint or several, to which any such Indemnified Person may
become subject to the extent arising out of or in connection with any actual or threatened claim, litigation, investigation or proceeding (including any inquiry or investigation) in connection with this Commitment Letter (including the Term Sheet),
the Fee Letter, the Transactions or any related transaction contemplated hereby or thereby, the Term Facility or any use of the proceeds thereof (any of the foregoing, a Proceeding), regardless of whether any such
Indemnified Person is a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates or creditors or any other third person, and to promptly reimburse after receipt of a written request, each such Indemnified
Person for any reasonable and documented or invoiced out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the foregoing by one firm of counsel for all such Indemnified Persons, taken as a whole and, if
necessary, by a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such Indemnified Persons, taken as a whole (and, in the case of an actual or
perceived conflict of interest where the Indemnified Person affected by such conflict notifies you of the existence of such conflict and thereafter retains its own counsel, by another firm of counsel for such affected Indemnified Person) or other
reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to, or defending any of the foregoing; provided that the foregoing indemnity will not, as
to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent that they have resulted from (i) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related
Indemnified Person (as defined below) (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations of such Indemnified Person or any Related Indemnified Person under this
Commitment Letter or the Fee Letter (as determined by a court of competent jurisdiction in a final and non-appealable decision), or (iii) any Proceeding solely between or among Indemnified Persons not arising from any act or omission by you or
any of your affiliates; provided that the Administrative Agent and the Lead Arranger to the extent fulfilling their respective roles as an agent or arranger under the Term Facility and in their
capacities as such, shall remain indemnified in such Proceedings to the extent that none of the exceptions set forth in any of clauses (i) or (ii) of the immediately preceding proviso applies to such person at such time, and (b) to
the extent the Closing Date occurs, to reimburse the Commitment Party from time to time, upon presentation of a summary statement, for all reasonable and documented or invoiced out-of-pocket expenses (including but not limited to travel expenses and
reasonable fees, disbursements and other charges of one firm of counsel to the Commitment Party, the Lead Arranger and the Administrative Agent identified in the Term Sheet (and, in the case of an actual or perceived conflict of interest where the
Indemnified Person affected by such conflict informs you of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnified Person), and, if necessary, of a single firm of local counsel to the
Commitment Party in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) and of such other counsel retained with your prior written consent (not to be unreasonably withheld or delayed)),
in each case incurred in connection with the Term Facility and the preparation, negotiation and enforcement of this Commitment Letter, the Fee Letter, the Term Facility Documentation and any security arrangements in connection therewith
(collectively, the Expenses); provided that notwithstanding the foregoing, only one inventory appraisal and one field exam in each relevant jurisdiction shall be included in the definition
of Expenses. The foregoing provisions in this paragraph shall be superseded, in each case, to the extent covered thereby by the applicable provisions contained in the Term Facility Documentation upon execution thereof and thereafter shall have no
further force and effect. You acknowledge that the Indemnified Persons may receive a benefit, including without limitation, a discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of
their relationship with us including, without limitation, fees paid pursuant hereto.
4
Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified
Person shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have
resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of you
(or any of your subsidiaries), the Target (or any of its subsidiaries) or any Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or
anticipated savings) in connection with this Commitment Letter, the Fee Letter, the Transactions (including the Term Facility and the use of proceeds thereunder), or with respect to any activities related to the Term Facility, including the
preparation of this Commitment Letter, the Fee Letter and the Term Facility Documentation; provided that nothing in this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or
consequential damages are included in any claim by a third party with respect to which the applicable Indemnified Person is entitled to indemnification under the first paragraph of this Section 6.
You shall not be liable for any settlement of any Proceeding effected without your written consent (which consent shall not be unreasonably
withheld, conditioned or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction against one or more Indemnified Persons in any such Proceeding, you agree to
indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with and
to the extent provided in the other provisions of this Section 6.
5
Related Indemnified Person of an Indemnified Person means (1) any
controlling person or any controlled affiliate of such Indemnified Person, (2) the respective directors, officers, or employees of such Indemnified Person or any of its controlling persons or any of its controlled affiliates and (3) the
respective agents, advisors and representatives of such Indemnified Person or any of its controlling persons or any of its controlled affiliates, in the case of this clause (3), acting at the instructions of such Indemnified Person, controlling
person or such controlled affiliate (it being understood and agreed that any agent, advisor or representative of such Indemnified Person or any of its controlling persons or any of its controlled affiliates engaged to represent or otherwise advise
such Indemnified Person, controlling person or controlled affiliate in connection with the Transactions shall be deemed to be acting at the instruction of such person).
|
7. |
Sharing of Information, Absence of Fiduciary Relationships, Affiliate Activities. |
You
acknowledge that the Commitment Party and its affiliates may be providing debt financing, equity capital or other services (including, without limitation, financial advisory services) to other persons in respect of which you, the Target and your and
their respective subsidiaries and affiliates may have conflicting interests regarding the transactions described herein and otherwise. The Commitment Party and its affiliates will not use confidential information obtained from you, the Target or any
of your or its subsidiaries or affiliates by virtue of the transactions contemplated by this Commitment Letter or their other relationships with you, the Target or any of your or its subsidiaries or affiliates in connection with the performance by
them or their affiliates of services for other persons, and the Commitment Party and its affiliates will not furnish any such information to other persons, except to the extent permitted below. You also acknowledge that the Commitment Party and its
affiliates do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, the Target or any of your or its subsidiaries or affiliates confidential information obtained by them from
other persons.
You further acknowledge that the Commitment Party and its affiliates may be engaged, either directly or through their
affiliates, in various activities, including securities trading, commodities trading, investment management, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course
of these activities, the Commitment Party and its affiliates may actively engage in commodities trading or trade the debt and equity securities (or related derivative securities) and financial instruments (including bank loans and other obligations)
of you (and your affiliates), the Target, the Targets customers or competitors and other companies which may be the subject of the arrangements contemplated by this Commitment Letter for their own account and for the accounts of their
customers and may at any time hold long and short positions in such securities. The Commitment Party and its affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment
vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you (and your affiliates), the Borrower, the Target or other companies which may be the subject of the arrangements
contemplated by this Commitment Letter or engage in commodities or other trading with any thereof.
The Commitment Party and its
affiliates may have economic interests that conflict with those of the Target, you and the Borrower and your and their respective subsidiaries and affiliates and are under no obligation to disclose any conflicting interest to you, the Target and the
Borrower and your and their respective subsidiaries and affiliates. You agree that the Commitment Party will act under this Commitment Letter as an independent contractor and that nothing in this Commitment Letter or the Fee Letter will be deemed to
create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Commitment Party and its affiliates, on the one hand, and you, the Borrower and the Target, your and their respective equity holders or your and
their respective subsidiaries and affiliates, on the other hand. You acknowledge and agree that (i) the transactions contemplated by this Commitment Letter and the Fee Letter are arms-length commercial transactions between the Commitment
Party and its affiliates, on the one hand, and you, on the other, (ii) in connection therewith and with the process leading to such transaction the Commitment Party and its applicable affiliates (as the case may be) is acting solely as a
principal and not as agents or fiduciaries of you, the Borrower, the Target, your and their respective management, equity holders, creditors, subsidiaries, affiliates or any other person, (iii) the Commitment Party and its applicable affiliates
(as the case may be) have not assumed any advisory or fiduciary responsibility or any other obligation in favor of you, the Target, the Borrower or your or their respective affiliates with respect to the financing transactions contemplated hereby,
the exercise of the remedies with respect thereto or the process leading thereto (irrespective of whether the Commitment Party or any of its affiliates has advised or is currently advising you, the Borrower, or the Target or any of your or their
respective affiliates on other matters), and the Commitment Party has no obligation to you, the Target, the Borrower or your or their respective affiliates with respect to the transactions contemplated hereby except the obligations expressly set
forth in this Commitment Letter and the Fee Letter and (iv) the Commitment Party and its affiliates have not provided any legal, accounting, regulatory or tax advice and you have consulted your own legal and financial advisors to the extent you
deemed appropriate.
6
You further acknowledge and agree that you are responsible for making your own independent
judgment with respect to such transactions and the process leading thereto. You agree that you will not claim that the Commitment Party or its affiliates, as the case may be, have rendered advisory services of any nature or respect, or owe a
fiduciary, agency or similar duty to you or your affiliates, in connection with such transactions or the process leading thereto.
Furthermore, without limiting any provision set forth herein, you waive, to the fullest extent permitted by law, any claims you may have
against us or our affiliates for breach of fiduciary duty or alleged breach of fiduciary duty and agree that we and our affiliates shall have no liability (whether direct or indirect) to you in respect of such a fiduciary claim or to any person
asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors.
You agree that you will not disclose, directly or indirectly, the Fee
Letter or the contents thereof or, prior to your acceptance hereof, this Commitment Letter, the Term Sheet, the other exhibits and attachments hereto or the contents of each thereof, or the activities of the Commitment Party pursuant hereto or
thereto, to any person or entity without the prior written approval of the Commitment Party (such approval not to be unreasonably withheld, delayed or conditioned), except (a) to your and your affiliates officers, directors, employees,
agents, attorneys, accountants, advisors, controlling persons and equity holders and to actual and potential co-investors who are informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Commitment Party
consents in writing to such proposed disclosure, or (c) pursuant to an order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or
compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of your legal counsel (in which case you agree, to the extent practicable and not prohibited
by applicable law, rule or regulation, to inform us promptly thereof prior to disclosure); provided that (i) you may disclose this Commitment Letter (but not the Fee Letter or the contents thereof, except as provided in clause
(iv) below), and the contents hereof to the Target, its subsidiaries and its officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose
the Commitment Letter and its contents (including the Term Sheet and other exhibits and attachments hereto) (but not the Fee Letter or the contents thereof) in connection with any public or regulatory filing requirement relating to the Transactions,
(iii) you may disclose the aggregate fee amount contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent
customary or required in offering and marketing materials for the Term Facility or in any public or regulatory filing requirement relating to the Transactions (and only to the extent aggregated with all other fees and expenses of the Transactions
and not presented as an individual line item unless required by applicable law, rule or regulation), (iv) if the fee amounts payable pursuant to the Fee Letter and such other portions as mutually agreed have been redacted in a manner reasonably
agreed by us (including the portions thereof addressing fees payable to the Commitment Party and/or the Lenders), you may disclose the Fee Letter and the contents thereof to the Target, its subsidiaries and its officers, directors, employees,
agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (v) you may disclose this Commitment Letter and the information contained herein and the Fee Letter in connection with the exercise by
you of any remedies or enforcement of any rights hereunder in any suit, action or proceeding brought by you against us relating to this Commitment Letter, the Fee Letter or the transactions contemplated thereby, and (vi) you may disclose this
Commitment Letter and its contents (but not the Fee Letter or the contents thereof) to the extent that such information becomes publicly available other than by reason of improper disclosure by you in violation of any confidentiality obligations
hereunder.
7
The Commitment Party and its affiliates will use all non-public information
provided to any of them or such affiliates by or on behalf of you hereunder or in connection with the Acquisition and the related Transactions solely for the purpose of providing the services which are the subject of this Commitment Letter and
negotiating, evaluating and consummating the transactions contemplated hereby and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge, such information; provided
that nothing herein shall prevent the Commitment Party and its affiliates from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or
otherwise as required by applicable law, rule or regulation or compulsory legal process based on the reasonable advice of counsel (in which case the Commitment Party agrees (except with respect to any audit or examination conducted by bank
accountants or any governmental or regulatory (including self-regulatory) authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof
prior to disclosure), (b) upon the request or demand of any regulatory authority having jurisdiction, or purporting to have jurisdiction over, the Commitment Party or any of its affiliates (in which case the Commitment Party agrees (except with
respect to any audit or examination conducted by bank accountants or any governmental or regulatory (including self-regulatory) authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable
law, rule or regulation, to inform you promptly thereof prior to disclosure), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Commitment Party or any of its Related Parties
(as defined below) in violation of any confidentiality obligations owing to you, the Target or any of your or their respective subsidiaries, (d) to the extent that such information is or was received by the Commitment Party or any of its
Related Parties from a third party that is not, to the Commitment Partys knowledge, subject to contractual or fiduciary confidentiality obligations owing to you, the Target or any of your or their respective subsidiaries, (e) to the
extent that such information is independently developed by the Commitment Party or any of its Related Parties without the use of any confidential information, (f) to the Commitment Partys affiliates and to its and their respective
directors, officers, employees, legal counsel, independent auditors, professionals and other experts or agents who need to know such information in connection with the Transactions and who are informed of the confidential nature of such information
and who are subject to customary confidentiality obligations and who have been advised of their obligation to keep information of this type confidential (such related persons described in this clause (f), collectively, the Related
Parties), (g) to potential or prospective Lenders, participants or assignees, (h) for purposes of establishing a due diligence defense, (i) to the extent you consent in writing to any specific disclosure,
(j) to the extent such information was already in the Commitment Partys possession prior to any duty or other understanding of confidentiality entered into in connection with the Transactions; provided
that for purposes of clause (g) above, the disclosure of any such information to any Lenders, participants or assignees or prospective Lenders, participants or assignees referred to above shall be made subject to the acknowledgment and
acceptance by such Lender, participant or assignee or prospective Lender, participant or assignee that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise
reasonably acceptable to you and the Commitment Party, including, without limitation, as agreed in any marketing materials) in accordance with customary market standards for dissemination of such type of information, which shall in any
event require click through or other affirmative actions on the part of recipient to access such information. In the event that the Term Facility is funded, the Commitment Partys and its affiliates, if any, obligations under
this paragraph shall terminate automatically and be superseded (except as otherwise specified herein) by the confidentiality provisions in the Term Facility Documentation upon the funding thereunder to the extent that such provisions are binding on
the Commitment Party.
8
The confidentiality provisions set forth in this Section 8 shall survive the termination of
this Commitment Letter and (other than your obligations with respect to the Fee Letter) shall expire and shall be of no further effect after the second anniversary of the date hereof.
This Commitment Letter and the commitments hereunder shall not be
assignable by any party hereto without the prior written consent of each other party hereto (such consent not to be unreasonably withheld, conditioned or delayed) (and any attempted assignment without such consent shall be null and void). This
Commitment Letter and the commitments hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons) and do not and are not intended to confer any benefits upon, or create any rights in favor of, any person other
than the parties hereto (and Indemnified Persons to the extent expressly set forth herein). The Commitment Party reserves the right to employ the services of its respective affiliates or branches in providing services contemplated hereby and to
allocate, in whole or in part, to their affiliates or branches certain fees payable to the Commitment Party in such manner as the Commitment Party and its affiliates or branches may agree in their sole discretion and, to the extent so employed, such
affiliates and branches shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of, the Commitment Party hereunder; provided that subject to the satisfaction of the conditions set
forth in the section entitled Conditions to the Borrowing in Exhibit B and Exhibit C hereto (subject to the Limited Conditionality Provisions), (x) the Commitment Party shall not be relieved, released or novated from
its obligations hereunder (including its obligation to fund its commitment in respect of the Term Facility on the Closing Date) until after the funding of the Commitment Partys commitment in respect of the Term Facility on the Closing Date has
occurred and (y) the Commitment Party shall retain exclusive control over all rights and obligations with respect to its commitment in respect of the Term Facility, including all rights with respect to consents, modifications, supplements,
waivers and amendments, until after the funding of the Commitment Partys commitment in respect of the Term Facility on the Closing Date has occurred. This Commitment Letter may not be amended or any provision hereof waived or modified except
by an instrument in writing signed by the Commitment Party and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one
agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or other electronic transmission (e.g., a pdf or
tiff) shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter (including the exhibits hereto), together with the Fee Letter, (i) are the only agreements that have
been entered into among the parties hereto with respect to the Term Facility and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Term Facility and sets forth the entire understanding of the parties
hereto with respect thereto. THIS COMMITMENT LETTER, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER, OR RELATED TO, THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE
SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER OR THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.
Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the non-exclusive
jurisdiction of any New York State court or Federal court of the United States of America sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee
Letter or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court or, to
the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of
or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any New York State court or in any such Federal court, (c) waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Each of the parties hereto agrees that service of process, summons, notice or document by registered mail addressed to you or us at the addresses set forth above shall be effective service of process
for any suit, action or proceeding brought in any such court.
Each of the parties hereto agrees that (i) this Commitment Letter is a
binding and enforceable agreement with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Term Facility Documentation by the parties hereto in a manner consistent with this Commitment Letter, it
being acknowledged and agreed that the commitments hereunder are subject to conditions precedent expressly set forth in Section 5 herein, including the execution and delivery of the definitive documentation for the Term Facility as provided in
this Commitment Letter, and (ii) the Fee Letter is a binding and enforceable agreement with respect to the subject matter contained therein.
We hereby notify you that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001) (the PATRIOT Act) or other applicable laws, we and each of the Lenders may be required to obtain, verify and record information that identifies the Borrower, the Guarantors and their respective
affiliates, which information may include their names, addresses, tax identification numbers and other information that will allow us and the Lenders to identify the Borrower and the Guarantors in accordance with the PATRIOT Act and the other
applicable laws. This notice is given in accordance with the requirements of the PATRIOT Act and is effective for us and the Lenders.
The indemnification, compensation, reimbursement, jurisdiction, governing law, venue, waiver of jury trial and confidentiality
provisions contained herein and in the Fee Letter and the provisions of Section 7 of this Commitment Letter shall remain in full force and effect regardless of whether the Term Facility Documentation shall be executed and delivered and
notwithstanding the termination or expiration of this Commitment Letter or the Initial Lenders commitments hereunder; provided that your obligations under this Commitment Letter (other than your obligations with respect to the
confidentiality of the Fee Letter and the contents thereof) shall automatically terminate and be superseded by the provisions of the Term Facility Documentation upon the funding thereunder, and you shall automatically be released from all liability
in connection therewith at such time. You may terminate this Commitment Letter and/or the Initial Lenders commitments with respect to the Term Facility (or any portion thereof) at any time subject to the provisions of the preceding sentence
and the Fee Letter.
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Section headings used herein are for convenience of reference only and are not to affect the
construction of, or to be taken into consideration in interpreting, this Commitment Letter.
If the foregoing correctly sets
forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to the Commitment Party (or their legal counsel) on behalf of the Commitment Party, executed counterparts hereof and of
the Fee Letter not later than 11:59 p.m., New York City time, on September 29, 2015. The Initial Lenders commitments and the obligations of the Commitment Party hereunder will expire at such time in the event that the Commitment Party (or
their legal counsel) has not received such executed counterparts in accordance with the immediately preceding sentence. If you do so execute and deliver to us this Commitment Letter and the Fee Letter at or prior to such time, we agree to hold our
commitment to provide the Term Facility and our other undertakings in connection therewith available for you until the earliest of (i) after execution of the Acquisition Agreement and prior to the consummation of the Transactions, the
termination of the Acquisition Agreement by you in a signed writing in accordance with its terms (or your written confirmation or public announcement thereof), (ii) the consummation of the Acquisition without the funding of the Term Facility
and (iii) 11:59 p.m., New York City time, on the date that is five business days after the Termination Date (or other similar term as defined in the Acquisition Agreement as of the date hereof, as such date may be extended pursuant to the terms
of the Acquisition Agreement) (such earliest time, the Expiration Date). Upon the occurrence of any of the events referred to in the preceding sentence, this Commitment Letter and the commitments of the Commitment Party
hereunder and the agreement of the Commitment Party to provide the services described herein shall automatically terminate unless the Commitment Party shall, in its sole discretion, agree to an extension in writing.
[Remainder of this page intentionally left blank]
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We are pleased to have been given the opportunity to assist you in connection with the financing
for the Transactions.
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Very truly yours, |
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CHINA MERCHANTS BANK CO., LTD., |
NEW YORK BRANCH |
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By: |
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/s/ Jian (Kevin) Ding |
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Name: |
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Jian (Kevin) Ding |
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Title: |
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Head of China Group Corporate Banking |
Project Sky
Commitment Letter
Accepted and agreed to as of the date first above written:
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AirMedia Holdings Ltd. |
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By: |
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/s/ Herman Man Guo |
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Name: |
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Herman Man Guo |
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Title: |
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Director |
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AirMedia Merger Company Limited |
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By: |
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/s/ Herman Man Guo |
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Name: |
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Herman Man Guo |
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Title: |
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Director |
Project Sky
Commitment Letter
EXHIBIT A
Project Sky
Transaction
Description
Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the
Commitment Letter (the Commitment Letter) to which this Exhibit A is attached or in the Commitment Letter. In the case of any such capitalized term that is subject to multiple and differing definitions, the
appropriate meaning thereof in this Exhibit A shall be determined by reference to the context in which it is used.
Sponsor,
through AirMedia Holdings Ltd. (the Parent), intends to acquire (the Acquisition) AirMedia Group Inc. (the Target) through a wholly-owned subsidiary of Parent, AirMedia
Merger Company Limited (Merger Sub), from the equity holders of Target (collectively, the Sellers). Parent intends to consummate the Acquisition pursuant to the Agreement and Plan of Merger, dated
on the date hereof (together with all exhibits, schedules and other disclosure letters thereto, collectively, as amended, the Acquisition Agreement) among Parent, Merger Sub and the Target pursuant to which Merger Sub will
merge with and into the Target, with the Target being the surviving entity, and the Sellers will receive cash in exchange for all of the issued and outstanding equity interests held thereby in the Target (other than any equity interests held by the
Sponsor, entities controlled by the Sponsor, the Rollover Shareholders identified in the Rollover Agreement dated on or about the date hereof, and any other permitted holders to be mutually agreed by the Sponsor and the Commitment Party prior to
giving effect to the Acquisition (collectively, Equity Permitted Holders), which equity interests shall be rolled over by entities controlled by the Sponsor and such other Equity Permitted Holders in connection with the
Acquisition) (collectively, the Acquisition Consideration).
In connection with the foregoing, it is intended
that:
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a) |
The Borrower (as defined in Exhibit B hereto) will obtain up to $280 million under a senior secured term loan facility (the Term Facility) described in Exhibit B hereto; and
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d) |
The proceeds of the Term Facility will be applied solely (i) to pay the Acquisition Consideration and (ii) to pay the fees and expenses incurred in connection with the Transactions (such fees and expenses, the
Transaction Costs) (the amounts set forth in clauses (i) through (ii) above, collectively, the Acquisition Funds). |
The transactions described above (including the payment of Transaction Costs) are collectively referred to herein as the
Transactions.
A-1
EXHIBIT B
B-1
Project Sky
Up to $280 Million Senior Secured Term Loan Facility
Summary of Principal Terms and Conditions1
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Borrower: |
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Initially, AirMedia Merger Co. Ltd,, a Cayman Islands exempted company (Merger Sub) and, after the Acquisition, the Target (collectively, the Borrower). |
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Transactions: |
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As set forth in Exhibit A to the Commitment Letter. |
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Administrative Agent and Collateral Agents: |
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CMB NY will act as sole administrative agent (the Administrative Agent) and off-shore collateral agent and CMB BJ will act as the sole on-shore collateral agent (together with CMB NY, each a
Collateral Agent and collectively the Collateral Agents and the Collateral Agents together with the Administrative Agent, the Agents) for CMB NY as initial lender
(together with its permitted successors and assigns under the Term Facility, collectively, the Initial Lender) and any new lenders permitted in accordance with Assignments and Participations below (together with
the Initial Lender, collectively, the Lenders), and will perform the duties customarily associated with such roles. |
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Lead Arranger: |
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The Commitment Party will act as sole lead arranger (the Lead Arranger) for the Term Facility and perform the duties customarily associated with such role. |
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Term Facility: |
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A senior secured term loan facility in an aggregate principal amount of up to $280 million (the Term Facility). The loans under the Term Facility are referred to as the Term
Loans. |
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Purpose: |
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The proceeds of borrowings under the Term Facility will be used by the Borrower on the Closing Date solely to pay the Acquisition Funds (including, at the Borrowers election, to fund any fee required in the Fee
Letter). |
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Availability: |
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The Term Facility shall be borrowed in a single drawing on the Closing Date. Upon the satisfaction of the conditions set forth in the Conditions to the Borrowing section of this term sheet and Exhibit
C to the Commitment Letter, the Lenders shall fund the Term Facility within three business days after receipt of the Borrowing Notice (as defined below). Amounts borrowed under the Term Facility that are repaid or prepaid may not be
reborrowed. |
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Interest Rates and Fees: |
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As set forth on Annex I hereto and the Fee Letter, respectively. |
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Default Rate: |
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With respect to overdue principal, at the interest rate otherwise applicable plus 2.00% per annum, and with respect to any other overdue amount (including overdue interest), at the base rate (to be defined) plus 2.00%
per annum, which, in each case, shall be payable on demand. |
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Final Maturity and Amortization: |
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The Term Facility will mature on the date that is one (1) year after the Closing Date and its then outstanding aggregate principal amount will be payable on the maturity
date. |
1 |
All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Term Facility Term Sheet is attached, including Exhibits A and C thereto.
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B-2
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Guarantees: |
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All the obligations of the Borrower under the Term Facility to the Lenders and the Agents (the Borrower Obligations) shall, without any limitation, be unconditionally and irrevocably guaranteed
on a senior basis by Mr. Herman Man Guo (the Sponsor), Ms. Dan Shao (together with the Sponsor, the Permitted Holders) and Parent (collectively with the Permitted Holders, the
Guarantors). |
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Security: |
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The Borrower Obligations and all the obligations of the Guarantors under the guarantees (collectively, the Secured
Obligations) will be secured by a first priority pledge, charge or mortgage (i) by the Onshore Cash Pledgor (as defined below) of the Cash Pledge Accounts (and the deposits in such accounts) described below, which shall become
effective on the Closing Date, (ii) by the direct parent(s) of the Onshore Cash Pledgor of 100% of the equity interests in the Onshore Cash Pledgor, which shall become effective within five business days following the Closing Date, (iii) by the
Permitted Holders of all the shares held by them either directly in Parent and/or in any company which holds any equity interests in Parent (the SPV), which shall become effective immediately prior to closing, (iv) by all
the shareholders of Parent of 100% of the equity interests in Parent, which shall become effective immediately prior to closing, (v) by Parent of 100% of the equity interests in the Borrower (i.e. in Merger Sub before the Acquisition and in the
Target after the Acquisition), which shall become effective immediately prior to closing in the case of the pledge of Merger Sub, and on the Closing Date in the case of the pledge of Target, and (vi) by all the shareholders of 100% of the equity
interests in all of the offshore subsidiaries of Target (other than Excel Lead International Limited), which shall become effective on the Closing Date; in favor of CMB BJ in the case of clauses (i) and (ii), and in favor of CMB NY in the case of
clauses (iii) through (vi), in each case as the applicable Collateral Agent for the benefit of the Lenders and the Agents (the items described in clauses (i) through (vi) above, collectively, the Collateral). It is
understood and agreed that the perfection of the security interest in the Collateral is subject to the Limited Conditionality Provisions.
Security Grantors is defined collectively as the security grantors referred to in clauses (i) through (vi) above.
Individual Grantors is defined collectively as the Guarantors
and the Security Grantors who are individuals. Notwithstanding anything to the
contrary, the Collateral shall exclude margin stock. |
B-3
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Cash Pledge Accounts: |
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The Borrower shall cause Beijing AirMedia Shengshi Advertising Co., Ltd. (the Onshore Cash Pledgor) to establish and maintain one or more segregated bank accounts with the CMB BJ (the
Cash Pledge Accounts) and shall ensure that prior to the funding of the Term Facility, an amount in RMB that is equal to no less than 108% of the RMB equivalent (based on the exchange rate quoted by the Initial Lender) of
the sum (the Cash Pledge Amount) of (x) the USD amount of the entire principal amount of the Term Loan to be borrowed on the Closing Date and (y) the first installment of the interest thereon is on deposit in the Cash
Pledge Accounts and be subject to the control of CMB BJ, and that effective on the Closing Date, CMB BJ as the on-shore collateral agent shall have been granted, in form and substance reasonably satisfactory to CMB BJ, a valid security interest in
such accounts and the funds or other assets on deposit. |
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FX Risk Buffer and Margin Call |
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4% Margin Call: if RMB/USD exchange rate adversely moves from the Closing Date and the Term Loan to Cash Pledge Amount (in RMB)
ratio increases to 96%, the Borrower is required to deposit an amount in either USD or RMB to the Cash Pledge Accounts within three business days of demand from CMB NY, such that the Term Loan to Cash Pledge Amount (in RMB) ratio is no more than
92.5%. Cash Pledge Requirements is defined collectively as
the requirements imposed on the Borrower and the OnShore Cash Pledgor under the sections entitled Cash Pledge Accounts and FX Risk Buffer and Margin Call of this Exhibit B. |
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Mandatory Prepayments: |
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Mandatory prepayments of borrowings under the Term Facility shall be limited to: (a) 100% of the net cash proceeds received after the Closing Date from the sale or other disposition of all or any part of the assets of
Parent or any of its subsidiaries in excess of a threshold to be mutually agreed, subject to customary exceptions, thresholds and reinvestment provisions to be agreed in the Term Facility Documentation, (b) 100% of the net proceeds received by
Parent or any of its subsidiaries from the issuance of debt or disqualified preferred stock after the Closing Date, other than permitted debt under the Term Facility Documentation, and (c) 100% of all net cash casualty and condemnation proceeds
received by Parent or any of its subsidiaries after the Closing Date in excess of a threshold to be mutually agreed upon, subject to customary exceptions and reinvestment provisions to be agreed in the Term Facility Documentation. |
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Mandatory prepayments shall be applied, without premium or penalty, subject to reimbursement of the Lenders break-funding
costs in the case of a prepayment of LIBOR borrowings other than on the last day of the relevant interest period.
Prepayments from the profits to be distributed and asset sale or other disposition proceeds will be limited under the Term Facility Documentation to the extent
such prepayments would result in material adverse tax consequences or would be prohibited or restricted by applicable law, rule or regulation. |
B-4
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Voluntary Prepayments: |
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Voluntary prepayments of borrowings under the Term Facility will not be permitted during the first six months after the Closing Date, and will be permitted at any time thereafter, subject to reimbursement of the
Lenders break-funding costs in the case of a prepayment of LIBOR borrowings other than on the last day of the relevant interest period, without premium or penalty; provided that (i) the Borrower shall give the Administrative Agent
written notice no less than three (3) business days prior to the requested prepayment date and (ii) the amount of each voluntary prepayment must be no less than $10 million and in integral multiples of $5 million. |
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All voluntary prepayments of the Term Facility will be applied as directed by the Borrower (and absent such direction, in direct order of maturity). |
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Conditions to the Borrowing: |
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The availability of the borrowing and other extensions of credit under the Term Facility on the Closing Date will be subject solely to (a) delivery of a customary borrowing notice (the Borrowing
Notice), (b) the accuracy of the Specified Representations and the Specified Acquisition Agreement Representations, in each case in all material respects (subject to the Limited Conditionality Provisions); provided that any
representations and warranties qualified by materiality shall be accurate in all respects, and (c) the conditions set forth in Exhibit C to the Commitment Letter. |
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Term Facility Documentation: |
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The definitive financing documentation for the Term Facility will consist of a credit agreement, guarantees, applicable collateral agreements and the necessary ancillary documents (collectively, the Term
Facility Documentation) which shall be initially drafted by counsel for the Administrative Agent and shall contain the terms set forth in this Exhibit B and, to the extent any other terms are not expressly set forth in this
Exhibit B, will (i) be negotiated promptly in good faith and (ii) contain only those conditions, representations, events of default and covenants set forth in this Exhibit B and such other terms as the Borrower and the Lead Arranger shall
reasonably agree; it being understood and agreed that the Term Facility Documentation shall be based on and substantially consistent with transaction documents for a comparable financing of a going private transaction involving a company publicly
listed in the U.S., subject to such changes and adjustments as shall be reasonably necessary and mutually agreed to by the Borrower and the Lead Arranger, giving due regard to the operational and strategic requirements of Parent and its subsidiaries
in light of their consolidated capital structure, size, industry and practices and proposed business plan (after giving effect to the Transactions) (the principles described above, the Documentation Principles). |
B-5
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Representations and Warranties: |
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Limited to the following (in each case, to be applicable to Parent, the Borrower, and the subsidiaries, and the other Guarantors and Security Grantors (provided that Individual Grantors shall only be subject to
customary representations and warranties relating to their guarantee and their grant of security in the Collateral, as applicable), and subject to customary exceptions, thresholds and qualifications consistent with the Documentation Principles):
organizational status and good standing; power and authority, due authorization, qualification, execution, delivery and enforceability of Term Facility Documentation; with respect to the execution, delivery and performance of the Term Facility
Documentation, no violation of, or conflict with, material law, organizational documents or material agreements; compliance with material law (including environmental laws); litigation; use of proceeds and compliance with margin regulations;
material governmental and third party approvals with respect to the execution, delivery and performance of the Term Facility; inapplicability of Investment Company Act; solvency of Parent and its subsidiaries on a consolidated basis; accurate and
complete disclosure; accuracy of historical financial statements (including pro forma financial statements based on historical balance sheets); since the Closing Date, no Material Adverse Effect (as defined below); taxes; insurance; pension plans;
PATRIOT Act; OFAC; FCPA; anti-money laundering laws; subsidiaries; intellectual property; status of Term Facility as senior debt; ownership of properties; and creation, perfection and priority of liens. |
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Material Adverse Effect shall mean any event, circumstance or condition that has had or could reasonably be expected to have a material and adverse effect on (a) the business or financial
condition of Parent and its subsidiaries, taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform its payment obligations under the Term Facility Documentation or (c) the rights and remedies of the Agents
and the Lenders under the Term Facility Documentation. |
B-6
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Affirmative Covenants: |
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Limited to the following (in each case, to be applicable to Parent, the Borrower and the subsidiaries, the other Guarantors and Security Grantors (provided that Individual Grantors shall only be subject to
customary covenants relating to their guarantee and their grant of security in the Collateral, as applicable), and subject to customary exceptions, thresholds and qualifications consistent with the Documentation Principles): delivery of annual
audited consolidated and semi-annual unaudited financial statements of Parent and its subsidiaries within 120 days of the end of the fiscal year ending after the Closing Date and 60 days of the end of the first fiscal half of any fiscal year ending
after the Closing Date, and, in connection with the above-mentioned annual financial statements, an annual audit opinion from nationally recognized auditors that is not subject to any qualification as to going concern or scope of the
audit (other than any exception or explanatory paragraph, but not a qualification, that is expressly solely with respect to, or expressly resulting solely from, (i) an upcoming maturity date under the Term Facility occurring within one year from the
time such opinion is delivered or (ii) any potential, but not actual, inability to satisfy a financial maintenance covenant on a future date or in a future period), or similar explanatory paragraphs, officers compliance certificates and other
information reasonably requested by the Administrative Agent; notices of defaults, material litigation; inspections by the Administrative Agent (subject to frequency (so long as there is no ongoing event of default) and cost reimbursement
limitations); maintenance of property (subject to casualty, condemnation and normal wear and tear); maintenance of existence and corporate franchises, rights and privileges; maintenance of books and records; payment of taxes and similar claims;
compliance with laws and regulations (including environmental, pension plans; Patriot Act, OFAC, FCPA and anti-money laundering laws); use of proceeds; and further assurances on collateral matters; and the Cash Pledge Requirements. |
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Negative Covenants: |
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Limited to the following (in each case, to be applicable to Parent, the Borrower and the subsidiaries, the other Guarantors and Security Grantors (provided that Individual Grantors shall only be subject to
customary covenants relating to their guarantee and their grant of security in the Collateral, as applicable), and subject to customary exceptions, thresholds and qualifications consistent with the Documentation Principles): |
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a) |
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limitations on the incurrence of indebtedness (which shall permit, among other things, (i) the indebtedness under the Term Facility and any permitted refinancings thereof, (ii) non-speculative hedging arrangements, (iii) any
indebtedness of the Target and its subsidiaries incurred prior to the Closing Date which remains outstanding and is permitted to remain outstanding with the consent of the Lead Arranger and any permitted refinancings thereof, (iv) purchase money
indebtedness and capital leases in an amount to be agreed, (v) indebtedness of an acquired company or secured by acquired assets, to the extent such indebtedness is assumed or remains outstanding in connection with the related acquisition;
provided that (A) such indebtedness was not incurred in contemplation of such acquisition, (B) such indebtedness shall not exceed $5 million and (C) such acquisition is a permitted investment or acquisition (Acquired
Indebtedness), (vi) refinancings of permitted indebtedness (Refinancing Indebtedness), subject to customary limitations on the amount, tenor and weighted average life of such Refinancing Indebtedness, (vii) a
general debt basket in an amount of $5 million which may be secured to the extent permitted by exceptions to the lien covenant, and (viii) other customary exceptions, including certain intra-group
indebtedness); |
B-7
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limitations on liens (which shall prohibit any pledge of the Cash Pledge Accounts and other Collateral to any party other than the Lenders but shall permit, among other things, (i) liens securing the obligations arising under
the Term Facility and permitted refinancing thereof, (ii) any liens (other than liens on the Collateral) of the Target and its subsidiaries incurred prior to the Closing Date which remain outstanding and are permitted to remain outstanding with
the consent of the Lead Arranger, (iii) liens on equipment or fixed assets that are subject to permitted purchase money indebtedness or capital leases in each case permitted to be incurred pursuant to clause (a)(iv) above, (iv) liens
(other than liens on the Collateral) securing Acquired Indebtedness; provided that such liens were not created in contemplation of the applicable acquisition, (v) liens (other than liens on the Collateral) securing Refinancing
Indebtedness, to the extent the indebtedness being refinanced was secured, (vi) a general lien (other than liens on the Collateral) basket in an amount of $5 million, and (vii) other customary exceptions); |
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limitations on fundamental changes (including, without limitation, the reduction of registered and issued capital of the Borrower, and the restructuring of Parent and the subsidiaries, subject to exceptions for post-merger
restructuring plans to be agreed between the Borrower and the Lead Arranger); |
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limitations on asset sales (including sales of subsidiaries), sale and lease back transactions and other asset disposals (to be defined in the Term Facility Documentation), with carve-outs to include asset sales the proceeds of
which are applied to prepay the Term Loans and the transfer of up to 10% of the shares in Parent by SPV and/or the Permitted Holders for the purposes of satisfying ESOP awards granted; |
B-8
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e) |
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limitations on investments and acquisitions, provided that the Borrower may make investments and acquisitions with funds received from its investors (and in compliance with the other covenants or provisions of the Term
Facility); |
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f) |
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limitations on dividends or distributions on, or redemptions of, equity interests (which shall permit, among other things, (i) subject to no continuing event of default, customary payments or distributions to pay the tax liabilities
and overhead expenses of any direct or indirect parent, to the extent such payments cover taxes that are attributable to the activities of the Borrower or its subsidiaries or such parents ownership of the Borrower or its subsidiaries and are
net of any payments already made by the Borrower and its subsidiaries, (ii) payment of legal, accounting and other ordinary course corporate overhead or other operational expenses of any such parent not to exceed an amount to be agreed in any fiscal
year and for the payment of franchise or similar taxes, and (iii) dividends on the Borrowers shareholdings in its subsidiaries); provided that the Borrower and Parent shall not make any distributions or pay any dividends other than for
the purpose of repayment of the debt under the Term Facility. |
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g) |
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limitations on prepayments or redemptions of any subordinated indebtedness for borrowed money or any indebtedness for borrowed money secured on a junior basis to the Term Facility; |
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limitations on negative pledge clauses; |
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i) |
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limitations on burdensome agreements; |
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j) |
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limitations on amendments of material agreements; |
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limitations on transactions with affiliates; |
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limitations on changes in lines of business; and |
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m) |
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limitations on changes of fiscal year. |
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Events of Default: |
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Limited to the following (to be applicable to Parent, the Borrower and the subsidiaries, the other Guarantors and Security Grantors): nonpayment of principal when due; nonpayment of interest or other amounts after a
customary five business day grace period; violation of covenants (subject, in the case of affirmative covenants (other than the Cash Pledge Requirements, use of proceeds, notices of default and maintenance of existence), to a thirty day grace
period); incorrectness of representations and warranties in any material respect (subject to a thirty day grace period in the case of misrepresentations that are capable of being cured); cross default and cross acceleration to indebtedness of an
amount in excess of an amount to be agreed; bankruptcy or other similar events of the Guarantors, the Borrower or any of the material subsidiaries of Parent or the Security Grantors (with a 60 day grace period for involuntary events); monetary
judgments of an amount in excess of an amount to be agreed; actual or asserted (in writing) invalidity of material guarantees or security interest in Collateral; Change of Control (as defined
below). |
B-9
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Change of Control |
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Change of Control shall be deemed to have occurred if (a) the Permitted Holders shall fail to own, directly or indirectly, beneficially and of record, shares representing at least 50.1% of the
aggregate ordinary voting power represented by the issued and outstanding equity interests of Parent, or (b) Parent shall cease to directly own, beneficially and of record, 100% of the issued and outstanding equity interests of the
Borrower. |
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Voting: |
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Amendments and waivers of the Term Facility Documentation will require the approval of Lenders holding at least 50% of the aggregate amount of the loans and commitments under the Term Facility (the Required
Lenders), except that (i) the consent of each Lender directly and adversely affected thereby shall be required with respect to: (A) increases in the commitment of such Lender (it being understood that a waiver of any default, event of
default or mandatory prepayment shall not constitute an extension or increase of any commitment), (B) reductions or forgiveness of principal, and (C) extensions of scheduled amortization payments or final maturity (it being understood that a waiver
of any mandatory prepayment shall not constitute an extension of any maturity date) or the date for the payment of interest, premiums or fees, (ii) the consent of 100% of the Lenders will be required with respect to (A) modifications to any of the
voting percentages and (B) releases of all or substantially all of the value of the guarantees or releases of all or substantially all of the Collateral and (iii) customary protections for the Administrative Agent will be provided. |
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The Term Facility Documentation shall contain customary provisions for replacing Lenders claiming increased costs, tax gross ups and similar required indemnity payments and replacing non-consenting Lenders in connection
with amendments and waivers requiring the consent of all Lenders or of all Lenders directly affected thereby so long as Lenders holding more than 50% of the aggregate amount of the Term Loans shall have consented thereto. |
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Cost and Yield Protection: |
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The Term Facility Documentation will include customary tax gross-up, cost and yield protection provisions. |
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Assignments and Participations: |
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After, but not before, the elapse of three months from the Closing Date, the Lenders will be permitted to assign (other than to natural persons) loans under the Term Facility with the consent of the Borrower (any such
consent shall be deemed to be given after 15 business days notice if the Borrower fails to respond) and the Administrative Agent (in each case not to be unreasonably withheld or delayed); provided that (A) no consent of the Borrower
shall be required after the occurrence and during the continuance of a payment, bankruptcy or non-compliance with the Cash Pledge Requirements Event of Default and (B) no consent of the Administrative Agent or the Borrower shall be required if such
assignment is an assignment to another Lender, an affiliate of a Lender or an approved fund. Each assignment (other than to another applicable Lender, an affiliate of an applicable Lender or an approved fund) will be in an amount of $5,000,000 (or
an integral multiple of $1,000,000 in excess thereof) (or lesser amounts, if agreed between the Borrower and the Administrative Agent) or, if less, all of such Lenders remaining loans. Assignments will be by novation. The Administrative Agent
shall receive a processing and recordation fee no less than $3,500 for each assignment (it being understood that such recordation fee shall not apply to any assignments by any of the Initial Lender or any of their
affiliates). |
B-10
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After, but not before, the elapse of three months from the Closing Date, the Lenders will be permitted to sell participations in loans without restriction in accordance with applicable law. |
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Voting rights of participants shall be limited to matters set forth under Voting above with respect to which the unanimous vote of all Lenders (or all directly and adversely affected Lenders, if the
participant is directly and adversely affected) would be required. |
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Expenses and Indemnification: |
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The Guarantors and the Borrower shall pay all reasonable and documented or invoiced out-of-pocket costs and expenses of the Agents and the Commitment Party (without duplication) associated with their due diligence
investigation, the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of the Term Facility Documentation (including the reasonable fees, disbursements and other charges of a single New York law
firm identified herein, a single local counsel in each relevant jurisdiction or otherwise retained with the Borrowers consent (such consent not to be unreasonably withheld, conditioned or delayed) and consultants (to the extent retained with
Borrowers consent (such consent not to be unreasonably withheld, conditioned or delayed)). |
B-11
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The Borrower will indemnify the Agents, the Commitment Party and the Lenders (without duplication) and their affiliates, and the officers, directors, employees, advisors, agents, controlling persons and other
representatives of the foregoing and their successors and permitted assigns (each, an Indemnified Party), and hold them harmless from and against any and all losses, claims, damages and liabilities of any kind or nature and
the reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating or defending any of the foregoing (including the reasonable fees, disbursements and other charges of a single firm of counsel for all
Indemnified Parties, taken as a whole, and, if necessary, by a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all Indemnified Parties taken as a
whole (and, in the case of an actual or perceived conflict of interest, where the Indemnified Party(s) affected by such conflict notifies the Borrower of the existence of such conflict and thereafter retains its own counsel, by another firm of
counsel for such affected indemnified person)) of any such Indemnified Party arising out of or in connection with, any claim, litigation, investigation or other proceeding (including any inquiry or investigation of the foregoing) (regardless of
whether such Indemnified Party is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or any other third person) relating to the Transactions,
including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful
misconduct of such Indemnified Party or any Related Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach by such Indemnified Party or any Related Indemnified Person of
its obligations under the Term Facility (as determined by a court of competent jurisdiction in a final and non-appealable decision), or (iii) any proceeding between and among Indemnified Parties that does not involve an act or omission by Parent,
the Borrower or any of their subsidiaries; provided that the Administrative Agent, the Lead Arranger and any other agents, to the extent acting in their capacity as such, shall remain indemnified in respect of such proceeding, to the extent
that none of the exceptions set forth in any of clauses (i) or (ii) of the immediately preceding proviso applies to such person at such time. |
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Governing Law and Forum: |
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The Term Facility Documentation (other than local law governed security documents) will be governed by New York law and will provide for the parties thereto to submit to the non-exclusive jurisdiction and venue of the
Federal and state courts of the State of New York sitting in the Borough of Manhattan in New York City. |
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Counsel to the Administrative Agent and Lead Arranger: |
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Allen & Overy LLP. |
B-12
ANNEX I
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Interest Rates: |
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LIBOR plus 2.3% per annum. |
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The Borrower may only elect interest periods of 3 months for LIBOR borrowings. |
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Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days. |
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Interest shall be payable in arrears at the end of each interest period and on the applicable maturity date. |
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LIBOR means the London interbank offered rate for U.S. dollar deposits for a three month interest period appearing on the Reuters Screen LIBOR01 Page or such other screen as may be determined prior to the
Closing Date (or otherwise on the Reuters screen). |
EXHIBIT C
Project Sky
Summary of
Additional Conditions2
The borrowings under the Term Facility shall be subject
to the satisfaction or waiver, in each case, in the Administrative Agents reasonable determination, of the following conditions:
1.
(x) The Lead Arranger and the Initial Lender shall have received an update from Borrowers counsel in respect of the litigation filed on June 25, 2015 in the United States District Court for the Southern District of New York, under the
caption Huang v. Airmedia Group Inc., et al., Case No. 15 Civ. 4966 (ALC), containing the details of the parties to the litigation, allegations made against the defendant(s) and the status of the litigation to the business day prior to
the Closing Date, and (y) the Lead Arranger and the Initial Lender (acting reasonably) shall be satisfied that the litigation does not have, and would not have, a Material Adverse Effect (as defined in Exhibit B to the Commitment
Letter).
2. No Material Adverse Effect (as defined in the Acquisition Agreement) shall have occurred since the date of the Acquisition
Agreement.
3. The Acquisition shall have been consummated, or substantially simultaneously with the borrowing under the Term
Facility, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, consents or waivers by you thereto, other than those modifications, amendments,
consents or waivers that are materially adverse to the interests of the Lenders or the Commitment Party in their capacities as such, unless consented to in writing by the Lead Arranger (such consent not to be unreasonably withheld or delayed;
provided that (x) any amendment, waiver or consent which result in a reduction in the purchase price for the Acquisition shall not be deemed to be materially adverse to the Lenders or the Commitment Party, if it is accompanied by a
permanent and automatic reduction of the Commitments under the Term Facility in an equivalent amount, and (y) any increase in purchase price for the Acquisition equal to or less than 10% shall not be deemed to be materially adverse to the
Lenders or the Commitment Party, if the Borrower can provide evidence satisfactory to the Lenders and the Commitment Party that it has sufficient funds (in addition to the Commitment hereunder) to pay the adjusted purchase price in full). The
Administrative Agent shall have received evidence of (i) the staff of the U.S. Securities and Exchange Commission (SEC) have indicated to the Targets counsel that they are not reviewing or, in
connection with their review, have no further comments with respect to the Proxy Statement or the Schedule 13E-3 filed with the SEC in connection with the Acquisition and (ii) the public announcement of execution and delivery of the Acquisition
Agreement by the Target.
4. The Administrative Agent shall have received evidence substantially simultaneously with the borrowing
under the Term Facility that the Permitted Holders own directly or indirectly not less than 67.9% of the ownership interest in Parent.
5.
The Administrative Agent shall have received (a) audited consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related statements of income, stockholders equity and cash flows of the Target and
its consolidated subsidiaries for, the three most recently completed fiscal years ended not less than 180 days prior to the Closing Date, and (b) unaudited consolidated balance sheets of the Target and its consolidated subsidiaries as at the
end of, and related statements of income, stockholders equity and cash flows of the Target and its consolidated subsidiaries for each subsequent fiscal quarter occurring after the last fiscal year of Target and ended not less than 90 days
before the Closing Date, in each case, prepared in accordance with the generally applicable accounting principles in the United States; provided that, for each of clause (a) and (b) above, the Administrative Agent shall be deemed to have
received such financial statements to the extent and upon the filing of such financial statements with the U.S. Securities and Exchange Commission by the Target.
2 |
All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Exhibit C is attached, including Exhibits A and B. In the case of
any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit E shall be determined by reference to the context in which it is used. |
6. Subject in all respects to the Limited Conditionality Provisions, all documents and
instruments (including without limitation stock certificates and related stock transfer powers) required to create and perfect the Administrative Agent security interest in the Collateral in respect of the Term Facility shall have been
executed and delivered and, if applicable, be in proper form for filing.
7. The Administrative Agent shall have received evidence of the
deposit of the Cash Pledge Amount and maintenance of such Cash Pledge Amount in the Cash Pledge Accounts.
8. At least two business days
prior to the Closing Date, the Administrative Agent and the Lead Arranger shall have received all documentation and other information about the Borrower and the Guarantors, in each case that shall have been reasonably requested by the Administrative
Agent or the Lead Arranger in writing at least 10 business days prior to the Closing Date and that the Administrative Agent and the Lead Arranger reasonably determine is required by United States regulatory authorities under applicable know
your customer and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
9. The closing of the
Term Facility shall have occurred on or before the Expiration Date.
10. (i) The execution and delivery by the Borrower and the Guarantors
of the Term Facility Documentation (including guarantees by the applicable Guarantors and the cash pledge agreement) which shall, in each case, be in accordance with the terms of the Commitment Letter and the Term Sheets and (ii) delivery to
the Administrative Agent of customary legal opinions (including without limitation US legal opinions from counsel to the Borrower and the Guarantors), customary officers closing certificates, organizational documents, customary evidence of
authorization and good standing certificates in jurisdictions where applicable, in each case with respect to the Borrower, the Guarantors and the Security Grantors (to the extent applicable).
11. No bankruptcy Event of Default in relation to Parent, the Borrower, any Permitted Holder or the Onshore Cash Pledgor shall have occurred
and be continuing on such date (immediately prior to giving effect to the extensions of credit requested to be made) or would result after giving effect to the extensions of credit requested to be made on the Closing Date.
12. All fees required to be paid on or prior to the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to
be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower), shall, upon the borrowings under the Term Facility,
have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Term Facility).
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