EFTA01116257.pdf

DRAFT CMH/JJXC/DMBG 5 January 2012 DATED 2012 [HEDOSOPHIA INVESTMENTS] LIMITED AND THE SUBSCRIBERS AND [HEDOSOPHIA HOLDINGS] LIMITED SUBSCRIPTION AGREEMENT Slaughter and May One Bunhill Row London EC1Y 8YY (CMH/JJXC/DHBG) 510717421 EFTA01116257  Contents Page 1. INTERPRETATION 4 2. INVESTMENTS 5 3. EXPENSES 5 4. DISTRIBUTION OF PROCEEDS 66 5. RETURN OF UNUSED CAPITAL 56 6. RESTRICTIONS ON FUTURE INVESTMENTS 6 7. WINDING UP 6 8. SUBSCRIPTION 6 9. COMP-L-E-TION-- S 1-07 REPRESENTATIONS AND WARRANTIES fiZ 110. ARTICLES 7 12. WAIVER OF CERTAIN PRE EMPTION RIGHTS 7 13. RIGHT OF FIRST REFUSAL 7 142. FURTHFR ASSURANCE 8 13. ENTIRE AGREEMENT 8 14 NOTICES 8 15. RIGHT OF SUBSCRIPTION 79 156. TRANSFER OF SUBSCRIBER SHARES 7 160 1Z. REPORTING OBLIGATIONS 170 18. COSTS AND EXPENSES 8 180 EFTA01116258  3 19. GOVERNING LAW AND JURISDICTION 8 190 20. COUNTERPARTS 811 Schedule 1 124 Schedule 2 (Form of Investor Deed of Adherence) 15 THIS AGREEMENT is made on January 2012 BETWEEN (1) [HEDOSOPHIA INVESTMENTS] LIMITED a company incorporated in Guernsey under registered number [•] whose registered office is at [address] (the "Company"); (2) I.W.OSBORNE (HK) LIMITED of 4603-4609, 46th Floor, Jardine House, One Connaught Place, Central, Hong Kong with registration number 1581594; (3) [Jacob Burda's investment vehicle;] (4) [Kuok family investment vehicle;) (5) [Investment vehicle on behalf of US investor;) (6) [Canadian Foundation for Mr Li], those entities contained within paragraphs (2) to (6) above each being a 'Subscriber" and together being the 'Subscribers"; and (7) [HEDOSOPHIA HOLDING] LIMITED a company incorporated in Guernsey under registered number [•] whose registered office is at [address] ("HoklingHHL" and together with the Subscribers, "Shareholders") Note: we require, for each Subscriber, the names (including registered office, registered number and jurisdiction of incorporation) for the investment vehicles who will hold the PPS) WHEREAS: (A) The Company isainvestments-company intending to invest in a limited number of privately held consumer Internet companies with a view to realising these investments in 3 Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 16.DOC. Performed on 05/01/2012. EFTA01116259  4 due course and distributing the sate proceeds to shareholders on the terms of this agreement and the Articles. (B) Each of the Subscribers wishes to subscribe for, and the Company wishes to allot to each of the Subscribers, redeemable participating preference shares of no par value in the capital of the Company (the "PPS") in the proportions set out in Schedule 1 and on the terms contained in this agreement. (C) MeldingBBL is the holder of all the ordinary shares of no par value in the capital of the Company. (P) This_aoreement sets out the terms on which the Subscribers will subscribe for the PPS ancLcertain_terms regarding the conduct of the Company IT IS AGREED as follows: 1. INTERPRETATION 1.1 In this agreement: "Administrator" means the administrator of the Company from time to time appointed by the Board, initially [The Trust Corporation of the Channel Islands Limited]; "Articles" means the memorandum and articles of association of the Company, as amended from time to time; "Board" means the Holding Directorshoard of directors of the Company_ [which shall two directors nominated by NHL) [Ian Osborne. Jacob Burdall and a professional director resident in Guernsey from time to time appointed by the Administrator, initially [.]; "CompletionBusiness Day" means-completien-of-the-subsociptien-and-allotment-of Saturday, Sunday or public holiday in Guernsey' "Expenses" means administration, regulatory, legal, accountancy and other professional fees and expenses and any duties and taxes in connection with the running of the Company and dealing—kVitlifidministering the Investments, excluding any out of pocket expenses of the directors of the Company appointed—by 14eldingincurred in the performance of their duties as such. "Holding-Direetershia" means Ian Osborne and Jacob Burda or either of them as the context rewires. 4 Workshare Professional comparison of CC_510717421_8.DOC and CC_510717421_16.DOC. Performed on 05/01/2012. EFTA01116260  5 "Investments" has the meaning given in clause 2.1; ["Permitted Expenses" means reasonable expenses to the extent incurred selely—in—respest—efsnecifir.ally in connection with realising er-exitiegany_af the Investments;] "PPS" has the meaning given in Recital (B); "Subscription Date" means [the date of this oareernentp] January 2012] or such other date as the Company and the Subscribers agree; and "Subscription Price" has the meaning given in clause 38.24..and "Workina Hours" means 9.30 a.m. to 5.30 p.m. on a Business Day. 1.2 In construing this agreement, unless otherwise specified: (A) references to clauses are to clauses of this agreement; (B) a reference to any other document referred to in this agreement is a reference to that other document as amended, varied, novated or supplemented (other than in breach of the provisions of this agreement) at any time; (C) headings and titles are for convenience only and do not affect the interpretation of this agreement; and (D) general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words. 2. INVESTMENTS 2.1 Subject to clause 2.2, the Company willanitheShat anieethatibentropany will seek to invest theits capital of the Company in unlisted consumer internet companies ("Investments") as determined by the Board. 2.2 The Company &holland the Shareholders agree that the Company may not invest thefts capital of-the-Company in any gambling or alcohol related ilnvestments without the unanimous written approval of the Subscribers. 2.3 TheSiihject to clause 3. the Company and the Shareholders agree that the capital of the Company, subjeet-te-elabise-3-belew; will only be deployed in making the Investments. 3. EXPENSES 3.1 Thelt is agreed that the Company will meet its Expenses from funds set aside from the capital of the Company. 5 Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 16.DOC. Performed on 05/01/2012. EFTA01116261  6 3.2 The he total amount of Expenses, including Permitted Expenses, is to be capped at [US$1,000,000[•]] (the "capped amount") and the Company will set aside funds_egual to the capped amount from the initial PPS subscription proceeds forming the capital of the Company to meet these Expenses. [Subject to Gclause 3.3, any additional Expenses incurred by the Company over the capped amount will be payable by or on behalf of HokilagHHL.] 3.3 [Except for any Permitted Expenses,' the Company will not deploy its capital above the capped amount in meeting its Expenses without the unanimous consent of the Subscribers. 4. DISTRIBUTION OF PROCEEDS Al4Any proceeds (net of Fxpenses) realised from the Investments will be distributed to the Shareholders according to the Articles [, subject to clause 3.3]. No such proceeds (net of Fxpenses) will be reinvested in further Investments. 5. RETURN OF UNUSED CAPITAL In the event that, 12 months from and including the Subscription Date; the capital of the Company has not been fully invested (s_ubiect to antresematioair_Expenses_made pursuant to rip,' tSP 12) then the amount of capital not so deployed (less apy amount (up to the capped amount) retained to meet Expenses) shall be fetumeddiskibuted, as soon as reasonably practicable, to the Subscribers pro-rata to their respective PPS holdings as set out in Schedule 1. 6. RESTRICTIONS ON FUTURE INVESTMENTS 6.1 Subject to clauses 6.2 and 6.3, HHL agrees to procure that each of the Heldifighlft Directors agrees that he shall not, and shall procure that any entities with which he is connected shall not, make any Investments of any kind except through the Investments made by_the Company. 6.2 Following a period of 6 months from and including the date that the capital of the Company has been fully invest Expenses made pursuant to clause 3.2). each HHL Director, and any entities with which he is connected, will be permitted to make Investments without restriction. 6.3 Notwithstanding clauses 6.1 and 6.2, the Shareholders agree that Ian Osborne, or any entity with which he is connected, may receive share :based remuneration in the capital of any company (or a company in the same group of such company) to which he currently or subsequently provides advisory or consultancy services, as may be the case from time to time. 7. WINDING UP The Company intends to return all capital contributions and distribute any profits realised from the sale of Investments within 5 years of making--theawestments,the Subscription Date In the event that this husks not essurceslpossihle nr practicable the 6 Workshare Professional comparison of CC_510717421_8.DOC and CC_510717421_16.DOC. Performed on 05/01/2012. EFTA01116262  7 Board will conduct a good faith consultation with the PPS holders to determine what course of action would be appropriate, including whether it would be appropriate to wind the Company up. 8. SUBSCRIPTION 8.1 OnEach of the Subscribers agrees that, on the Subscription Date, the-Substribers4villit shall subscribe for, and the Company will issue and allot. the PPS to it such number of the PPS as is set out next to its respective name in the table in Schedule 1 free from all liens, charges, security interests, encumbrances and adverse claims-as-set-efft-in-the table-ie-Seheflule-‘ and in consideration of such issue and allotment it shall pay to the Compartyin_immediateavailable cleared funds the subscriptiougiceamalkable_to such PPS. The Company will promptly thereafter register each such Subscriber as a member Subscribers as members and will cause to be delivered to the Subscriber share certificates in respect of its respective PPS. 8.2 The subscription price for each of the PPS will be an amount equal to CUS.,*) (the "Subscription Price"). OrCOMPIETION 071—At-Gempletiew. (A)--the—Subseribem-will--individually—make—payment—to—the—Conapany—of—the—relevant Subscription-Pries-for-their-PPSHand 411.)--the--Cempany-will-allet-and4ssue--the--relevant-PP-8-42.-each-of4he-Subscribers-and will promptly thereafter-register-the Subscribers as members-and-will-eause-to-be-delivered te-the-Subseribers-shere-eeirlifieates-in-respeet-ef**la 9. 10. REPRESENTATIONS AND WARRANTIES 9.1 1-0-1-The Company represents and warrants to each of the Subscribers that it has full power, authority and capacity to allot and issue the PPS under the Articles pursuant to this agreement, and the directors of the Company have full power and authority to effect such allotment. 10.2 Each Subscriber represents and warrants to the Company that it has full power, authority and capacity to subscribe for the PPS under the Articles pursuant to this agreement. 9.3 The execution and performance by each party of this agreement and any other agreement, certificate nr document executed by each party in connection with this agreement and the Subscriptions (and the consummation of such subscriptions) contemplated by this agreement and any related agreements will not, to the knowledge of each party (having made reasonable enquiries in relation to the same): (i) violate or conflict with any la niles or regulations of any government authority having jurisdiction; or (ii) result in the breach of, or constitute a default (with or without notice or SP of time or both) uncle any provision of any debt instrument, indenture, mortgage 7 Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 16.DOC. Performed on 05/01/2012. EFTA01116263  8 agreement or other instrument or arrangement to which each party is a party or any dgment order nr decree by which that party is hotamt. SA Fach of the warranties shall he construed as a separate and independent warranty and each party shall have a separate claim and right of action in respect of any breach of a warranty given to that ply. The warranties shall continue in full force and effect after the Subscription date 10. 44—ARTICLES ISA 1-1A—Each Subscriber undertakes to accept the PPS subject to the Articles and to comply with the Articles in all respects. 1(12 114-If there is a conflict between the provisions contained within this agreement and the Articles, the provisions of this agreement shall prevail. ]To be confirmed with attemsetawnseti 42.—WAIVER-OF-CERTAIN-42RE-EMPTION-RIGHTS flosues-ef-new-shares-in-the-eapitakef-the-Gempany-fenewing-Gempletien-wilkenly-be maile-iivith--the-unanimmis-consent-of--the-Subscribers4 [Subject4herete,-eachl-Rag4 Subseriber-waives-his-rights-under4the-provisiens of the Companies-frauernsey)-Law; 2008-(as-amended)Hand-einer-Fights-ef-pm-emptien-whethec-undeF-the-Anieles-ef otherwise)-4a-mlationa-any-forther-issue-er--allotment-of-snares-in-the--eapital--of--the Company, 11. 43-RIGHT OF FIRST REFUSAL 11.1. In the event that the Company decides to offer an additional PPS subscription [with the Subscribers' consent], the Subscribers will each have a right of first refusal in proportion to their existing PPS shareholdings to subscribe for additional PPS. [In the event that one or more Subscribers do not wish to subscribe for additional PPS, then the remaining Subscribers may subscribe for the unsubscribed PPS in the proportions [they so agree] [determined by the Board].] 11.2 Subject to clause 11.1, the parties agree to extend the benefit and burden of this agreement to I d' the S uhscrihe who I'd subscribes for PPS or h th ri f h h'g' d by th C p yin accordance with the terms of this agreement and the articles and validly executes deed of adherence substantially in the form attached in Schedule 2 hut without prejudice to the continuation inter se of the rights and obligations of the original parties to this agreement and any other persons who have entered into such investor deed of adherence as applicable. 12. FURTHER ASSURANCE Fach of the parties shall do or procure the doing of all such acts and/or execute or procure the execution of such documents as may he necessary in order to give effect to the provisions of this agreement. 8 Workshare Professional comparison of CC_510717421_8.DOC and CC_510717421 16.DOC. Performed on 05/01/2012. EFTA01116264  9 13 FNTIRF AGREEMENT 13.1 The—sithscriation_agreemen holeancLonlyagreement between the parties relating to the subscription fn and the allotment through the Company to each alheatibSCribettrajd2ES. 132 Fxrept in the CPSP of fraurt nn party shall have any right of action against any other undertaking, representation assurance or arrangement of env nature whatsoever, whether nr not in writing, relating to the subject matter of this subscription agreement made nr given by any person at any time prior to the date of this agreement 13 3 This agreement may only be varied in writing signed by the parties IS NOTICES 14.1 Except where expressly stated otherwise, a notice_under this Deed shall only be effective if it is in writing. Faxes and are permitted 141 Notices under this Deed shall be sent to a party at its address or number and for the attention of the individual set out below. Party and title of Address Facsimile no. E-mail address individual Nedosophia r±1 Investments] Limited W.Osbome (HK) 4603-4609, 46th Limited lour Jardine House. One Connaught Place, Central. Hong Kong (Jacob Burda's N N N 'nvestment vehicle] fKuok family N N N investment vehicle.] (US investor ili N ili investment vehicle] [Canadian N N N Foundation for Mr ti 9 Workshare Professional comparison of CC_510717421_8.DOC and CC_510717421_16.DOC. Performed on 05/01/2012. EFTA01116265  10 Neilosophia N N Lti Holding) I 'miter( Provided that a party may change its notice details on giving notice to the other party of the change in accordance with this Clause 14.3 Any notice given under this Deed shall, in the absence of earlier receipt, he deemed to have bPejl duly given as follows. LA) if delivered personally, on delivery. (1) ifiellibY_PCafwellusinessDays after the date of 1 Sj ,g; (C) if sent by e-mail when despatched. and (2) if sent by facsimile, on the Business Day following the day on which it was sent 14.4 Arty notice given under this agreement outside Wnrkinq Hours in the place to which it is addressed shall he deemed not to have been given until the start of the next period of Working Hours in such place. 15. 44-RIGHT OF SUBSCRIPTION In the event that an additional company is established by 14eldingHHL or the HoldiegHHI Directors to make Investments, the Subscribers shall have the right to subscribe for the initial offering of the relevant investor shares in that company in an amount at least equal to their existing PPS shareholdings. Subscribers must determine whether they agree to participate in any such offering within (10] Business Days of receiving written notice of theImp a 46.TRANSFER OF SUBSCRIBER SHARES Each Subscriber undertakes not to transfer its PPS to any person (legal or natural) save to an entity which is either controlled by the same person(s) as that Subscriber or [is managed by the same person and] has the same beneficiaries as that Subscriber. a -REPORTING OBLIGATIONS 46. The Company will provide: (i) annual reports for Subscribers providing details of the Investments made and the financial position of the Company; and (ii) quarterly letters to the Subscribers which will include key information in respect of the Investments made. a 4-T.-COSTS AND EXPENSES Each of the parties to this agreement will bear its own costs and expenses incurred in relation to the preparation of this agreement and the subscription of the PPS. 10 Workshare Professional comparison of CC_510717421_8.DOC and CC_510717421 16.DOC. Performed on 05/01/2012. EFTA01116266  I 19. 18. GOVERNING LAW AND JURISDICTION 19.1 484 This agreement is governed by and will be construed in accordance with the law of [Guernsey]. 19.2 18.2 Jurisdiction The courts of [Guernsey) are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement. 12.3 483-Waiver of objections Each party waives (and agrees not to raise) any objection, on the ground of forum non conveniens or on any other ground, to the taking of proceedings in the courts of [Guernsey]. Each party also agrees that a judgment against it in proceedings brought in [Guernsey] shall be conclusive and binding upon it and may be enforced in any other jurisdiction. 19A 48,4 Agent for Service Each Subscriber irrevocably appoints [NAME] of [ADDRESS] and [FAX NUMBER] as its agent to receive on its behalf in Guernsey service of any proceedings under clause 189. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by the applicable Subscriber) and shall be valid until such time as the Company has received prior written notice from the applicable Subscriber that such agent has ceased to act as agent. If for any reason such agent ceases to be able to act as agent or no longer has an address in Guernsey, each Subscriber shall forthwith appoint a substitute acceptable to the Company and deliver to the Company the new agent's name, address and fax number within Guernsey. [Note: the agent for service provision in 189.4 is to be amended if Subscribers will have separate agents for service.] 20. 19. COUNTERPARTS This Agreement may be executed in any number of counterparts, or by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart shall constitute an original on this Agreement, but all the counterparts alone constitute one and the same instrument. IN WITNESS whereof this agreement has been entered into the day and year first above written. EXECUTED as an agreement by [HEDOSOPHIA INVESTMENTS] Director LIMITED II Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 16.DOC. Performed on 05/01/2012. EFTA01116267  12 acting by:- Director/Secretary SIGNED by I.W.OSBORNE (HK) LIMITED witnessed by: Signature Name Address Occupation SIGNED by [Jacob Burda's ) investment vehicle] witnessed by: Signature Name Address Occupation SIGNED by [Kook family ) investment vehicle] ) witnessed by: ) 12 Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 I6.DOC. Performed on 05/01/2012. EFTA01116268  13 Signature Name Address Occupation SIGNED by [Investment vehicle on ) behalf of US Investor] ) witnessed by: ) Signature Name Address Occupation SIGNED by [Canadian Foundation for ) Mr Li] ) witnessed by: ) Signature Name Address 13 Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 I6.DOC. Performed on 05/01/2012. EFTA01116269  14 Occupation EXECUTED as an agreement by [HEDOSOPHIA Director HOLDINGS) LIMITED acting by:- Director/Secretary 14 Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 16.DOC. Performed on 05/01/2012. EFTA01116270  Schedule 1 Subscriber Number of PPS Percentage PPS being subscribed holding I.W.Osbome (HK) Limited 1.1 (•] per cent. [Jacob Burda's investment vehicle] (•1 (•] per cent. [Kuok family investment vehicle] (•] (•] per cent. [Investment vehicle on behalf of US (•] (•] per cent. Investor] [Canadian Foundation for Mr Li] (•] (•] per cent. EFTA01116271  16 Schedule 2 (Form of Investor Deed ofAdlaerencel THIS DEED is made on [date) BETWEEN: 11 IHEDOSOPHIA INVESTMENTS' LIMITED a corn - r vjncorporated in Guernsey untie recliStererinUMberEAMOSe_regielerl office is at laggressilla' mpany"Land (2) [Name of person adhering] (of [address)] [a company incorporated [in / tinder the laws ofligriSdiciiartundeuggistered number [numbed whose (registered /principal) office is at (arldressfl (the "Alternative Subscriber") WHEREAS: (A) The Alte ative Subscriber shall subscribe for a number of ordinary shams of the Company, (B) This Deed is entered into in compliance with the terms of an agreement dated 2012 made between (1)_[HED(:),Wal1A_INVESTMENTSI_Limiteill, (2) I W Osborne (1:11S) imited, (.3) [Iamb Riirda's investment vehicle] (4) [Kuok family investment vehicle), (5) [Investment vehicle on hehalf of US investnrk(6) [Canadian Foundation for Mr 1 and (Z) IllECIOSORHARCISINGLI-imitesIL_LsAustliasuegmentsba Jie amend - supplemented nr novated from time to time (the "Subscription Agreement") THIS DEED WITNESSES as follows: 1. The Alternative Subsrrihe.r agrees to h 'h for, and the Com - r aorees to issue and alla (numbed of preference shares (PPS") at US$fsl per PPS or such other class of share of the Company being issued 2. The Alternative Subscriber will pay for all of its costs and expenses in signing up to this need of Adherence 3. The Alternative Subscriber undertakes to adhere to and be bound by the provisions of the Sub ti Agreement 4. The address facsimile number and e-mail address of the Alternative Subscriber for the purposes of clause 14 of the Subscription Agreement are as follows: Party and title of Address Facsimile no. E-mail address individual EP] Its registered offiaeitonitimelo 16 Workshare Professional comparison of CC_510717421_8.DOC and CC_510717421 16.DOC. Performed on 05/01/2012. EFTA01116272  17 6. The courts of (Guernsey] are to have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this deed, Any proceeding suit or action arising out of or in connection with this agreement !'Proceedings-)_may therefore be brought in the (Guernsey] courts. Nothing contained in this clause shall limit the right of any person having the benefit of this Deed to take Proceedings against the Alternative Subscriber in any other court or in the courts of more than one_jurisdictiortaLthesamelime IN WITNESS of which this Deed has been executed and delivered by the parties on the date which first Pxecuted and delivered as a deed by IHEDOSOPHIA INVESTMENTS] LIMITED ) in the presence of: ) ) Per Till; Director e: Witness's Signature (Name) !Address (Occupation) . (Note. The above details are to be ramplativl In the witness's own handwrilina.) -d as a deed ) by Iname of company] acting ) Director by [a director and its secretary/ ) lwaskrectictral ) Director/Secretary 5107/7421 17 Workshare Professional comparison of CC_510717421_8.DOC and CC_510717421 16.DOC. Performed on 05/01/2012. EFTA01116273 Document comparison by Workshare Professional on 05 January 2012 20:47:18 Input: Document 1 ID CATempNetRight1Compare1CC_510717421_8.DOC Description CATemplNetRight1Compare1CC_510717421_8.DOC Document 2 ID CATemplNetRight1Compare1CC_510717421_16.DOC Description CATemplNetRi ht1ComparelCC_510717421_16.DOC Rendering set SandMMoves2 Legend: IMF Insertion Deletion Moved-from Moved to Style change Format change Moved-deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Count Insertions 211 Deletions 97 Moved from 5 Moved to 5 Style change 0 Format changed 0 Total changes 318 18 Workshare Professional comparison of CC_510717421_8.DOC and CC 510717421 16.DOC. Performed on 05/01/2012. EFTA01116274