Exhibit 24
EXECUTION VERSION
AMENDMENT TO THE CONFIRMATION
| To: | JJ Media Investment Holding Limited c/o Focus Media Holding Limited 28-30 /F, Zhao Feng World Trade Building 369 Jiangsa Road Shanghai 200050 People’s Republic of China | |
| From: | Goldman Sachs International | |
| Subject: | Capped Call Transaction 1 | |
| Ref. No: | SDB1631930669 | |
| Date: | November 22, 2011 | |
The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend and supplement certain terms and conditions of the Transaction (as defined below) entered into between Goldman Sachs International (“GSI”) and JJ Media Investment Holding Limited (“Counterparty”) (together, the “Contracting Parties”).
This Amendment amends, supplements and forms part of the Confirmation, dated as of September 7, 2010 (as amended by the Amendment to the Confirmation, dated as of June 22, 2011 and as further amended by the Amendment to the Confirmation, dated as of September 30, 2011, the “Confirmation”), between the Contracting Parties, in respect of a certain Capped Call Transaction 1 (the “Transaction”) relating to the Shares, supplementing the Master Confirmation, dated as of September 7, 2010, between the Contracting Parties (the “Master Confirmation”), as amended by the Amendment to the Master Confirmation, dated as of June 21, 2011, and as further amended or supplemented from time to time. Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation or the Master Confirmation, as applicable.
In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, the Contracting Parties hereby agree as follows:
1. The effectiveness of the provisions of paragraphs 2, 3, 4 and 5 of this Amendment shall be subject to the following conditions (the time at which the last such condition is satisfied being the “Amendment Effective Time”):
| a. | Underlying Shares Issuer and GSI shall have executed a letter agreement in respect of certain matters relating to this Amendment; and |
| b. | The representations and warranties of Underlying Shares Issuer contained in the letter agreement referenced in clause (a) above shall be true and correct as of the date hereof. |
2. The Contracting Parties agree that the following shall apply in the aggregate with respect to all amendments dated as of the date hereof to Transactions under the Master Confirmation (“November 2011 Amendments”) (and performance under this Paragraph 2 shall satisfy in full the obligation to perform pursuant to corresponding provisions under other November 2011 Amendments):
Subject to paragraph 1 of this Amendment, GSI hereby agrees to sell to Counterparty, and Counterparty hereby agrees to buy from GSI, on [***] (the “Payment Date”), 712,896 Shares (the “Purchased Shares”) for a purchase price of USD 10,999,985.28 (equal to the product of (i) the Purchased Shares and (ii) USD 15.43, the closing price per Share on the Exchange on November 21, 2011), on a delivery-versus-payment basis (the “Share Purchase”). The Representation and Agreement contained in Section 9.11 of the Equity Definitions shall apply to the Share Purchase, but shall be modified by excluding any restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Counterparty is an affiliate of the issuer of the Underlying Shares. For the avoidance of doubt, the Contracting Parties hereby acknowledge that the Share Purchase does not constitute a part of any Transaction under the Master Confirmation.
| *** | Certain confidential information contained in this document, marked by brackets and asterisks, has been omitted and filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. |
3. Subject to paragraph 1 of this Amendment, the Confirmation is hereby amended by (i) replacing the table therein setting forth the Component Number of Options, the Strike Price and Cap Price with respect to the specified Components and scheduled Expiration Date, Expected Prepayment Date and Expected Settlement Date for each Component of the Transaction to which the Confirmation relates with the table set forth in Attachment 1 hereto and (ii) replacing the date opposite the caption “Final Disruption Date” therein with the date [***].
4. Subject to paragraph 1 of this Amendment, for purposes of the Transaction to which the Confirmation relates, the provisions opposite the caption “Corporate Transaction Adjustment” in the Master Confirmation shall be amended by replacing the portion of the proviso in “Corporate Transaction Adjustment” from the beginning of such proviso to, and including, the words “any Component” immediately preceding the parenthetical “(the “Unwind Reference Period”)” in the fifth and sixth lines thereafter in its entirety with the following: “provided that, the occurrence of a Corporate Transaction Event or a Related Corporate Transaction Event during the period consisting of (x) the period commencing on the date that is ten (10) Scheduled Trading Days prior to the scheduled Expiration Date specified for the first Component for any Transaction and concluding on the last Valuation Date to occur for any Component with a scheduled Expiration Date of [***], (y) the period commencing on the date that is ten (10) Scheduled Trading Days prior to [***] and concluding on the date hereof, and (z) the period commencing on the date that is ten (10) Scheduled Trading Days prior to the first scheduled Expiration Date for any Component of any Transaction scheduled to occur after [***] and concluding on the last Valuation Date to occur for any Component”. For the avoidance of doubt, the Contracting Parties agree that the definition of “Excluded Transactions” under “Corporate Transaction Adjustment” in the Master Confirmation shall include the Share Purchase, the definition of “Related Corporate Event” in the Master Confirmation shall exclude the Share Purchase and “Potential Adjustment Event” in Section 11.2(e) of the Equity Definitions shall be amended to exclude the Share Purchase.
5. Subject to paragraph 1 of this Amendment, in connection with, and in consideration for, the amendments contemplated in Sections 3 and 4 of each November 2011 Amendment, Counterparty hereby agrees that on the Payment Date Counterparty shall pay to GSI an amendment fee in the amount of USD 5.1 million, which fee shall apply in the aggregate with respect to all Transactions that are outstanding as of the date hereof under the Master Confirmation (and performance under this paragraph 5 shall satisfy performance of the substantially similar provisions under the amendments dated as of the date hereof with respect to such other outstanding Transactions).
6. (i) In connection with this Amendment, as of the date hereof, each Contracting Party repeats its representations contained in Section 3 of the Agreement and its representations, warranties and agreements contained in Section 6 of the Master Confirmation (except for Section 6(b)(i) of the Master Confirmation).
(ii) Counterparty represents and warrants to, and agrees with, GSI that, as of the date hereof, Counterparty is not aware of any material nonpublic information concerning Underlying Shares Issuer, the Shares or the Underlying Shares.
(iii) For the avoidance of doubt, GSI hereby agrees that neither the entry into this Amendment by Counterparty nor any discussions or communications between the Contracting Parties regarding this Amendment shall be construed in any way as a breach by Counterparty of its agreement contained in Section 6(e) of the Master Confirmation.
(iv) Counterparty agrees that Counterparty shall, as of the applicable due date, file all reports required to be filed by it in connection with the transactions contemplated hereby under Sections 13(d) and (g) of the Exchange Act.
7. In connection with the amendments contemplated in sections 2, 3, 4 and 5 of this Amendment, by 5:00 P.M., New York City time, on the fifth (5th) Scheduled Trading Day immediately following the date hereof, Counterparty shall have delivered to GSI an opinion of British Virgin Islands counsel in form and substance reasonably satisfactory to GSI in respect of this Amendment.
8. This Amendment amends solely the terms and provisions of the Transaction, the Confirmation and the Master Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation, the Master Confirmation or any other rights of the Contracting Parties under the Transaction, the Confirmation or the Master Confirmation. The Contracting Parties acknowledge that each of the Transaction, the Confirmation and the Master Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Master Confirmation and the Confirmation to the Transaction, to the Confirmation or to the Master Confirmation shall mean the Transaction, the Confirmation and the Master Confirmation as amended by this Amendment.
9. This Amendment and all matters arising in connection with this Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
10. Counterparty hereby agrees that by 5:00 P.M., New York City time, on the fifth (5th) Scheduled Trading Day immediately following the date hereof it will appoint Law Debenture Corporate Services Inc. as its Process Agent for the purpose of Section 13(c) of the Agreement.
11. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
[Remainder of page left blank intentionally]
Counterparty hereby agrees to confirm that the foregoing (in the exact form provided by GSI) correctly sets forth the terms of the agreement between GSI and Counterparty with respect to this Amendment, by manually signing this Amendment or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Equity Derivatives Documentation Department, Facsimile No. 212-428-1980/1983.
Yours faithfully,
| GOLDMAN SACHS INTERNATIONAL | ||||
| By: | /s/ Alireza Zaimi | |||
| Name: | Alireza Zaimi | |||
| Title: Managing Director | ||||
| Agreed and Accepted By: | ||
| JJ MEDIA INVESTMENT HOLDING LIMITED | ||
| By: | /s/ Jason Nanchun Jiang | |
| Name: Jason Nanchun Jiang | ||
| Title: Director | ||
[Signature Page to the Amendment to the Confirmation—Capped Call Transaction 1]
ATTACHMENT 1
For each Component of the Transaction, the Component Number of Options, the Strike Price and Cap Price with respect to the specified Components and scheduled Expiration Date (and, solely for illustrative purposes, the expected prepayment date and the expected settlement date) are set forth below:
Component | Component Number of Options | Strike Price | Cap Price | Expiration Date | Expected Prepayment Date (post [***] expiry 80%) | Expected Settlement Date (post [***] expiry 20%) | ||||||
| [***] | [***] | [***] | [***] | [***] | [***] | [***] |
EXECUTION VERSION
AMENDMENT TO THE CONFIRMATION
To: | JJ Media Investment Holding Limited c/o Focus Media Holding Limited 28-30 /F, Zhao Feng World Trade Building 369 Jiangsa Road Shanghai 200050 People’s Republic of China | |
From: | Goldman Sachs International | |
Subject: | Capped Call Transaction 2 | |
Ref. No: | SDB1631930669 | |
Date: | November 22, 2011 | |
The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend and supplement certain terms and conditions of the Transaction (as defined below) entered into between Goldman Sachs International (“GSI”) and JJ Media Investment Holding Limited (“Counterparty”) (together, the “Contracting Parties”).
This Amendment amends, supplements and forms part of the Confirmation, dated as of September 7, 2010 (as amended by the Amendment to the Confirmation, dated as of June 22, 2011 and as further amended by the Amendment to the Confirmation, dated as of September 30, 2011, the “Confirmation”), between the Contracting Parties, in respect of a certain Capped Call Transaction 2 (the “Transaction”) relating to the Shares, supplementing the Master Confirmation, dated as of September 7, 2010, between the Contracting Parties (the “Master Confirmation”), as amended by the Amendment to the Master Confirmation, dated as of June 21, 2011, and as further amended or supplemented from time to time. Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation or the Master Confirmation, as applicable.
In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, the Contracting Parties hereby agree as follows:
1. The effectiveness of the provisions of paragraphs 2, 3, 4 and 5 of this Amendment shall be subject to the following conditions (the time at which the last such condition is satisfied being the “Amendment Effective Time”):
| a. | Underlying Shares Issuer and GSI shall have executed a letter agreement in respect of certain matters relating to this Amendment; and |
| b. | The representations and warranties of Underlying Shares Issuer contained in the letter agreement referenced in clause (a) above shall be true and correct as of the date hereof. |
2. The Contracting Parties agree that the following shall apply in the aggregate with respect to all amendments dated as of the date hereof to Transactions under the Master Confirmation (“November 2011 Amendments”) (and performance under this Paragraph 2 shall satisfy in full the obligation to perform pursuant to corresponding provisions under other November 2011 Amendments):
Subject to paragraph 1 of this Amendment, GSI hereby agrees to sell to Counterparty, and Counterparty hereby agrees to buy from GSI, on [***] (the “Payment Date”), 712,896 Shares (the “Purchased Shares”) for a purchase price of USD 10,999,985.28 (equal to the product of (i) the Purchased Shares and (ii) USD 15.43, the closing price per Share on the Exchange on November 21, 2011), on a delivery-versus-payment basis (the “Share Purchase”). The Representation and Agreement contained in Section 9.11 of the Equity Definitions shall apply to the Share Purchase, but shall be modified by excluding any restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Counterparty is an affiliate of the issuer of the Underlying Shares. For the avoidance of doubt, the Contracting Parties hereby acknowledge that the Share Purchase does not constitute a part of any Transaction under the Master Confirmation.
| *** | Certain confidential information contained in this document, marked by brackets and asterisks, has been omitted and filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. |
3. Subject to paragraph 1 of this Amendment, the Confirmation is hereby amended by (i) replacing the table therein setting forth the Component Number of Options, the Strike Price and Cap Price with respect to the specified Components and scheduled Expiration Date, Expected Prepayment Date and Expected Settlement Date for each Component of the Transaction to which the Confirmation relates with the table set forth in Attachment 1 hereto and (ii) replacing the date opposite the caption “Final Disruption Date” therein with the date [***].
4. Subject to paragraph 1 of this Amendment, for purposes of the Transaction to which the Confirmation relates, the provisions opposite the caption “Corporate Transaction Adjustment” in the Master Confirmation shall be amended by replacing the portion of the proviso in “Corporate Transaction Adjustment” from the beginning of such proviso to, and including, the words “any Component” immediately preceding the parenthetical “(the “Unwind Reference Period”)” in the fifth and sixth lines thereafter in its entirety with the following: “provided that, the occurrence of a Corporate Transaction Event or a Related Corporate Transaction Event during the period consisting of (x) the period commencing on the date that is ten (10) Scheduled Trading Days prior to the scheduled Expiration Date specified for the first Component for any Transaction and concluding on the last Valuation Date to occur for any Component with a scheduled Expiration Date of [***], (y) the period commencing on the date that is ten (10) Scheduled Trading Days prior to [***] and concluding on the date hereof, and (z) the period commencing on the date that is ten (10) Scheduled Trading Days prior to the first scheduled Expiration Date for any Component of any Transaction scheduled to occur after [***] and concluding on the last Valuation Date to occur for any Component”. For the avoidance of doubt, the Contracting Parties agree that the definition of “Excluded Transactions” under “Corporate Transaction Adjustment” in the Master Confirmation shall include the Share Purchase, the definition of “Related Corporate Event” in the Master Confirmation shall exclude the Share Purchase and “Potential Adjustment Event” in Section 11.2(e) of the Equity Definitions shall be amended to exclude the Share Purchase.
5. Subject to paragraph 1 of this Amendment, in connection with, and in consideration for, the amendments contemplated in Sections 3 and 4 of each November 2011 Amendment, Counterparty hereby agrees that on the Payment Date Counterparty shall pay to GSI an amendment fee in the amount of USD 5.1 million, which fee shall apply in the aggregate with respect to all Transactions that are outstanding as of the date hereof under the Master Confirmation (and performance under this paragraph 5 shall satisfy performance of the substantially similar provisions under the amendments dated as of the date hereof with respect to such other outstanding Transactions).
6. (i) In connection with this Amendment, as of the date hereof, each Contracting Party repeats its representations contained in Section 3 of the Agreement and its representations, warranties and agreements contained in Section 6 of the Master Confirmation (except for Section 6(b)(i) of the Master Confirmation).
(ii) Counterparty represents and warrants to, and agrees with, GSI that, as of the date hereof, Counterparty is not aware of any material nonpublic information concerning Underlying Shares Issuer, the Shares or the Underlying Shares.
(iii) For the avoidance of doubt, GSI hereby agrees that neither the entry into this Amendment by Counterparty nor any discussions or communications between the Contracting Parties regarding this Amendment shall be construed in any way as a breach by Counterparty of its agreement contained in Section 6(e) of the Master Confirmation.
(iv) Counterparty agrees that Counterparty shall, as of the applicable due date, file all reports required to be filed by it in connection with the transactions contemplated hereby under Sections 13(d) and (g) of the Exchange Act.
7. In connection with the amendments contemplated in sections 2, 3, 4 and 5 of this Amendment, by 5:00 P.M., New York City time, on the fifth (5th) Scheduled Trading Day immediately following the date hereof, Counterparty shall have delivered to GSI an opinion of British Virgin Islands counsel in form and substance reasonably satisfactory to GSI in respect of this Amendment.
8. This Amendment amends solely the terms and provisions of the Transaction, the Confirmation and the Master Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation, the Master Confirmation or any other rights of the Contracting Parties under the Transaction, the Confirmation or the Master Confirmation. The Contracting Parties acknowledge that each of the Transaction, the Confirmation and the Master Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Master Confirmation and the Confirmation to the Transaction, to the Confirmation or to the Master Confirmation shall mean the Transaction, the Confirmation and the Master Confirmation as amended by this Amendment.
9. This Amendment and all matters arising in connection with this Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
10. Counterparty hereby agrees that by 5:00 P.M., New York City time, on the fifth (5th) Scheduled Trading Day immediately following the date hereof it will appoint Law Debenture Corporate Services Inc. as its Process Agent for the purpose of Section 13(c) of the Agreement.
11. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
[Remainder of page left blank intentionally]
Counterparty hereby agrees to confirm that the foregoing (in the exact form provided by GSI) correctly sets forth the terms of the agreement between GSI and Counterparty with respect to this Amendment, by manually signing this Amendment or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Equity Derivatives Documentation Department, Facsimile No. 212-428-1980/1983.
Yours faithfully,
| GOLDMAN SACHS INTERNATIONAL | ||||
| By: | /s/ Alireza Zaimi | |||
| Name: | Alireza Zaimi | |||
| Title: Managing Director | ||||
| Agreed and Accepted By: | ||||
| JJ MEDIA INVESTMENT HOLDING LIMITED | ||||
| By: | /s/ Jason Nanchun Jiang | |||
| Name: | Jason Nanchun Jiang | |||
| Title: Director | ||||
[Signature Page to the Amendment to the Confirmation—Capped Call Transaction 2]
ATTACHMENT 1
For each Component of the Transaction, the Component Number of Options, the Strike Price and Cap Price with respect to the specified Components and scheduled Expiration Date (and, solely for illustrative purposes, the expected prepayment date and the expected settlement date) are set forth below:
Component Number | Component Number of Options | Strike Price | Cap Price | Expiration Date | Expected Prepayment Date (post [***] expiry 80%) | Expected Settlement Date (post [***] expiry 20%) | ||||||
| [***] | [***] | [***] | [***] | [***] | [***] | [***] |
EXECUTION VERSION
AMENDMENT TO THE CONFIRMATION
| To: | JJ Media Investment Holding Limited c/o Focus Media Holding Limited 28-30 /F, Zhao Feng World Trade Building 369 Jiangsa Road Shanghai 200050 People’s Republic of China | |
| From: | Goldman Sachs International | |
| Subject: | Capped Call Transaction 3 | |
| Ref. No: | SDB1631930669 | |
| Date: | November 22, 2011 | |
The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend and supplement certain terms and conditions of the Transaction (as defined below) entered into between Goldman Sachs International (“GSI”) and JJ Media Investment Holding Limited (“Counterparty”) (together, the “Contracting Parties”).
This Amendment amends, supplements and forms part of the Confirmation, dated as of September 7, 2010 (as amended by the Amendment to the Confirmation, dated as of June 22, 2011 and as further amended by the Amendment to the Confirmation, dated as of September 30, 2011, the “Confirmation”), between the Contracting Parties, in respect of a certain Capped Call Transaction 3 (the “Transaction”) relating to the Shares, supplementing the Master Confirmation, dated as of September 7, 2010, between the Contracting Parties (the “Master Confirmation”), as amended by the Amendment to the Master Confirmation, dated as of June 21, 2011, and as further amended or supplemented from time to time. Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation or the Master Confirmation, as applicable.
In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, the Contracting Parties hereby agree as follows:
1. The effectiveness of the provisions of paragraphs 2, 3, 4 and 5 of this Amendment shall be subject to the following conditions (the time at which the last such condition is satisfied being the “Amendment Effective Time”):
| a. | Underlying Shares Issuer and GSI shall have executed a letter agreement in respect of certain matters relating to this Amendment; and |
| b. | The representations and warranties of Underlying Shares Issuer contained in the letter agreement referenced in clause (a) above shall be true and correct as of the date hereof. |
2. The Contracting Parties agree that the following shall apply in the aggregate with respect to all amendments dated as of the date hereof to Transactions under the Master Confirmation (“November 2011 Amendments”) (and performance under this Paragraph 2 shall satisfy in full the obligation to perform pursuant to corresponding provisions under other November 2011 Amendments):
Subject to paragraph 1 of this Amendment, GSI hereby agrees to sell to Counterparty, and Counterparty hereby agrees to buy from GSI, on [***] (the “Payment Date”), 712,896 Shares (the “Purchased Shares”) for a purchase price of USD 10,999,985.28 (equal to the product of (i) the Purchased Shares and (ii) USD 15.43, the closing price per Share on the Exchange on November 21, 2011), on a delivery-versus-payment basis (the “Share Purchase”). The Representation and Agreement contained in Section 9.11 of the Equity Definitions shall apply to the Share Purchase, but shall be modified by excluding any restrictions, obligations, limitations or requirements under applicable securities laws as a result of the fact that Counterparty is an affiliate of the issuer of the Underlying Shares. For the avoidance of doubt, the Contracting Parties hereby acknowledge that the Share Purchase does not constitute a part of any Transaction under the Master Confirmation.
| *** | Certain confidential information contained in this document, marked by brackets and asterisks, has been omitted and filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended |
3. Subject to paragraph 1 of this Amendment, the Confirmation is hereby amended by (i) replacing the table therein setting forth the Component Number of Options, the Strike Price and Cap Price with respect to the specified Components and scheduled Expiration Date, Expected Prepayment Date and Expected Settlement Date for each Component of the Transaction to which the Confirmation relates with the table set forth in Attachment 1 hereto and (ii) replacing the date opposite the caption “Final Disruption Date” therein with the date [***].
4. Subject to paragraph 1 of this Amendment, for purposes of the Transaction to which the Confirmation relates, the provisions opposite the caption “Corporate Transaction Adjustment” in the Master Confirmation shall be amended by replacing the portion of the proviso in “Corporate Transaction Adjustment” from the beginning of such proviso to, and including, the words “any Component” immediately preceding the parenthetical “(the “Unwind Reference Period”)” in the fifth and sixth lines thereafter in its entirety with the following: “provided that, the occurrence of a Corporate Transaction Event or a Related Corporate Transaction Event during the period consisting of (x) the period commencing on the date that is ten (10) Scheduled Trading Days prior to the scheduled Expiration Date specified for the first Component for any Transaction and concluding on the last Valuation Date to occur for any Component with a scheduled Expiration Date of [***], (y) the period commencing on the date that is ten (10) Scheduled Trading Days prior to [***] and concluding on the date hereof, and (z) the period commencing on the date that is ten (10) Scheduled Trading Days prior to the first scheduled Expiration Date for any Component of any Transaction scheduled to occur after [***] and concluding on the last Valuation Date to occur for any Component”. For the avoidance of doubt, the Contracting Parties agree that the definition of “Excluded Transactions” under “Corporate Transaction Adjustment” in the Master Confirmation shall include the Share Purchase, the definition of “Related Corporate Event” in the Master Confirmation shall exclude the Share Purchase and “Potential Adjustment Event” in Section 11.2(e) of the Equity Definitions shall be amended to exclude the Share Purchase.
5. Subject to paragraph 1 of this Amendment, in connection with, and in consideration for, the amendments contemplated in Sections 3 and 4 of each November 2011 Amendment, Counterparty hereby agrees that on the Payment Date Counterparty shall pay to GSI an amendment fee in the amount of USD 5.1 million, which fee shall apply in the aggregate with respect to all Transactions that are outstanding as of the date hereof under the Master Confirmation (and performance under this paragraph 5 shall satisfy performance of the substantially similar provisions under the amendments dated as of the date hereof with respect to such other outstanding Transactions).
6. (i) In connection with this Amendment, as of the date hereof, each Contracting Party repeats its representations contained in Section 3 of the Agreement and its representations, warranties and agreements contained in Section 6 of the Master Confirmation (except for Section 6(b)(i) of the Master Confirmation).
(ii) Counterparty represents and warrants to, and agrees with, GSI that, as of the date hereof, Counterparty is not aware of any material nonpublic information concerning Underlying Shares Issuer, the Shares or the Underlying Shares.
(iii) For the avoidance of doubt, GSI hereby agrees that neither the entry into this Amendment by Counterparty nor any discussions or communications between the Contracting Parties regarding this Amendment shall be construed in any way as a breach by Counterparty of its agreement contained in Section 6(e) of the Master Confirmation.
(iv) Counterparty agrees that Counterparty shall, as of the applicable due date, file all reports required to be filed by it in connection with the transactions contemplated hereby under Sections 13(d) and (g) of the Exchange Act.
7. In connection with the amendments contemplated in sections 2, 3, 4 and 5 of this Amendment, by 5:00 P.M., New York City time, on the fifth (5th) Scheduled Trading Day immediately following the date hereof, Counterparty shall have delivered to GSI an opinion of British Virgin Islands counsel in form and substance reasonably satisfactory to GSI in respect of this Amendment.
8. This Amendment amends solely the terms and provisions of the Transaction, the Confirmation and the Master Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation, the Master Confirmation or any other rights of the Contracting Parties under the Transaction, the Confirmation or the Master Confirmation. The Contracting Parties acknowledge that each of the Transaction, the Confirmation and the Master Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Master Confirmation and the Confirmation to the Transaction, to the Confirmation or to the Master Confirmation shall mean the Transaction, the Confirmation and the Master Confirmation as amended by this Amendment.
9. This Amendment and all matters arising in connection with this Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
10. Counterparty hereby agrees that by 5:00 P.M., New York City time, on the fifth (5th) Scheduled Trading Day immediately following the date hereof it will appoint Law Debenture Corporate Services Inc. as its Process Agent for the purpose of Section 13(c) of the Agreement.
11. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
[Remainder of page left blank intentionally]
Counterparty hereby agrees to confirm that the foregoing (in the exact form provided by GSI) correctly sets forth the terms of the agreement between GSI and Counterparty with respect to this Amendment, by manually signing this Amendment or this page hereof as evidence of agreement to such terms and providing the other information requested herein and immediately returning an executed copy to Equity Derivatives Documentation Department, Facsimile No. 212-428-1980/1983.
Yours faithfully,
| GOLDMAN SACHS INTERNATIONAL | ||||
| By: | /s/ Alireza Zaimi | |||
| Name: | Alireza Zaimi | |||
| Title: Managing Director | ||||
| Agreed and Accepted By: | ||
| JJ MEDIA INVESTMENT HOLDING LIMITED | ||
| By: | /s/ Jason Nanchun Jiang | |
| Name: Jason Nanchun Jiang | ||
| Title: Director | ||
[Signature Page to the Amendment to the Confirmation—Capped Call Transaction 3]
ATTACHMENT 1
For each Component of the Transaction, the Component Number of Options, the Strike Price and Cap Price with respect to the specified Components and scheduled Expiration Date (and, solely for illustrative purposes, the expected prepayment date and the expected settlement date) are set forth below:
Component | Component Number of Options | Strike Price | Cap Price | Expiration Date | Expected Prepayment Date (post [***] expiry 80%) | Expected Settlement Date (post [***] expiry 20%) | ||||||
| [***] | [***] | [***] | [***] | [***] | [***] | [***] |
