UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 4)
Focus Media Holding Limited |
(Name of Issuer)
Ordinary Shares, par value $0.00005 per share American Depositary Shares, each representing five Ordinary Shares |
(Title of Class of Securities)
G3610R109 (Ordinary Shares) 34415V109 (American Depositary Shares) |
(CUSIP Number)
Jason Nanchun Jiang | JJ Media Investment Holding Limited | |
28-30/F Zhao Feng World Trade Building | 28/F Zhao Feng World Trade Building | |
369 Jiang Su Road, Shanghai 200060, China | 369 Jiang Su Road, Shanghai 200060, China | |
(86) 21-2216-4088 | (86) 21-2216-4088 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
November 22, 2011 |
(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 which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent.
* | 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).
CUSIP No. | 34415V109 |
1 |
NAMES OF REPORTING PERSONS
Jason Nanchun Jiang | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) x (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
PF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Singapore | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
113,501,185(1) | ||||
8 | SHARED VOTING POWER
N/A | |||||
9 | SOLE DISPOSITIVE POWER
113,501,185(1) | |||||
10 | SHARED DISPOSITIVE POWER
N/A | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
113,501,185(2) | |||||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.26%(2)(3) | |||||
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN |
(1) | Includes 113,501,185 Ordinary Shares held in the name of Citi (Nominees) Limited and beneficially owned by JJ Media Investments Holding Ltd. in the form of ADSs. JJ Media Investments Holding Ltd. is 100%-owned by Jason Nanchun Jiang. |
(2) | Includes collectively, the Ordinary Shares described in footnote (1). |
(3) | Percentage calculated based on 698,057,665 Ordinary Shares outstanding. |
CUSIP No. | 34415V109 |
1 |
NAMES OF REPORTING PERSONS
JJ Media Investment Holding Limited | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) x (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
PF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
113,501,185(4) | ||||
8 | SHARED VOTING POWER
N/A | |||||
9 | SOLE DISPOSITIVE POWER
113,501,185(4) | |||||
10 | SHARED DISPOSITIVE POWER
N/A | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
113,501,185 | |||||
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.26%(4)(5) | |||||
14 |
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO |
(4) | Includes 113,501,185 Ordinary Shares held in the name of Citi (Nominees) Limited and beneficially owned by JJ Media Investments Holding Ltd. in the form of ADSs. |
(5) | Percentage calculated based on 698,057,665 Ordinary Shares outstanding. |
EX-24 |
This amendment amends the Schedule 13D filed jointly with the Securities and Exchange Commission on February 5, 2010 (the Original 13D) by Jason Nanchun Jiang (Mr. Jiang) and JJ Media Investment Holding Limited (JJ Media, and together with Mr. Jiang, the Reporting Persons) with respect to Ordinary Shares, par value $0.00005 per ordinary share (the Ordinary Shares), and American Depositary Shares, each representing five Ordinary Shares (the ADSs) of Focus Media Holding Limited (the Issuer), as previously amended by amendments to the Original 13D filed on September 10, 2010, June 29, 2011 and October 4, 2011. This amendment is being made in connection with further amendments to the Options Agreements originally entered into on September 7, 2010 as initially amended on June 22, 2011 and further amended on September 30, 2011, as defined in Item 6 hereof, that will have the effect of postponing the expiration of a portion of each of the capped call transactions evidenced by the Options Agreements, as amended, with expiration to resume at a later date, amending the applicable strike and cap prices, and changing the timing of, and amount due upon, settlement of various components of the capped call transactions.
Item 3. Source and Amount of Funds or Other Consideration
Item 3 is hereby amended and restated as follows:
On September 7, 2010, JJ Media and Mr. Jiang entered into an Underwriting Agreement with the Issuer and Goldman, Sachs & Co., as underwriter, pursuant to which JJ Media agreed to sell 8,100,000 ADSs at a price of $18.90 per ADS under a Registration Statement on Form F-3 (File No. 169249) and a related prospectus supplement (the Public Offering). Of the 8,100,000 ADSs sold, 5,300,000 ADSs were purchased by Goldman, Sachs & Co. (the underwriter). The remaining 2,800,000 ADSs (hedge shares) were purchased by Goldman Sachs International or its affiliate (the variable price seller) with a view to offer such ADSs to the public.
Upon the closing of the Public Offering on September 13, 2010, JJ Media received aggregate proceeds of $153,090,000. In connection with the closing of the Public Offering, JJ Media primarily used the proceeds of the Public Offering to (1) pay in full the Citi Loan of $99,400,000 and (2) purchase the capped call options relating to 10,100,000 ADSs described in Items 5 and 6 hereof.
On June 22, 2011, JJ Media entered into amendments to the Options Agreements that had the effect of postponing the expiration of a portion of each of the capped call transactions evidenced by the Options Agreements with expiration to have resumed in September 2011 and the effect of changing the timing of, and amount due upon, settlement of various components of the capped call transactions.
On September 30, 2011, JJ Media entered into further amendments to the Options Agreements, as amended, that had the effect of postponing the expiration of a portion of each of the capped call transactions evidenced by the Options Agreements, as amended, with expiration to have resumed in November 2011 and the effect of amending the applicable strike and cap prices, and changing the timing of, and amount due upon, settlement of various components of the capped call transactions.
On November 22, 2011, JJ Media entered into further amendments to the Options Agreements, as amended, that will have the effect of postponing the expiration of a portion of each of the capped call transactions evidenced by the Options Agreements, as amended, with expiration to resume at a later date, amending the applicable strike and cap prices, and changing the timing of, and amount due upon, settlement of various components of the capped call transactions.
On November 22, 2011, JJ Media purchased 712,896 ADSs at a price of $15.43 per ADS in a block trade.
Item 5. Interest in Securities of the Issuer
Item 5 is hereby amended and restated as follows:
(a) and (b) The information contained on the cover pages to this Schedule 13D is incorporated herein by reference.
As of the date hereof, Mr. Jiang beneficially owns in the aggregate 113,501,185 Ordinary Shares, representing approximately 16.26% of the outstanding Ordinary Shares of the Issuer. Mr. Jiang has sole power to vote and sole power to dispose as to all the 113,501,185 Ordinary Shares he beneficially owns.
As of the date hereof, JJ Media beneficially owns in the aggregate 113,501,185 Ordinary Shares, representing approximately 16.26% of the outstanding Ordinary Shares of the Issuer. JJ Media has sole power to vote and sole power to dispose as to all the 113,501,185 Ordinary Shares it beneficially owns.
(c) Amendment to the Options Agreements: On November 22, 2011, JJ Media entered into further amendments to the Options Agreements, as amended, that will have the effect of postponing the expiration of a portion of each of the capped call transactions evidenced by the Options Agreements with expiration to resume at a later date, amending the applicable strike and cap prices, and changing the timing of, and amount due upon, settlement of various components of the capped call transactions.
Block Trade: On November 22, 2011, JJ Media purchased 712,896 ADSs at a price of $15.43 per ADS in a block trade.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Item 6 is hereby amended and restated as follows:
Subscription for Shares in 2009 and Related Loan Arrangements
On September 23, 2009, JJ Media and the Issuer entered into a subscription agreement (the Subscription Agreement) pursuant to which the Issuer issued and sold to JJ Media, and JJ Media subscribed for and purchased, 75,000,000 Ordinary Shares of the Issuer at a subscription price of $1.899 per share (equivalent to $9.495 per ADS). The aggregate subscription price was $142,425,000. The issuance was completed on November 19, 2009.
JJ Medias subscription was funded with the proceeds from a loan with a principal amount of $142,000,000 (the Citi Loan) made by Citibank, N.A. (the Initial Lender) under a margin loan agreement, dated as of November 13, 2009 (the Citi Loan Agreement), among JJ Media, the Lender, Citibank, N.A., as administrative agent, and Citibank, N.A., as collateral agent (the Citi Collateral Agent), of which $138,000,000 was drawn down, and through JJ Medias personal funds. On December 9, 2009, pursuant to an agreement among JJ Media, the Initial Lender, and Nomura Securities International, Inc. (Nomura), the Initial Lender agreed to reduce its lending commitment by $42,600,000 and Nomura agreed to take up that portion of the commitment (the Nomura Loan). Nomuras $42,600,000 commitment is set forth in a separate margin loan agreement, dated as of December 9, 2009 (the Nomura Loan Agreement, and together with the Citi Loan Agreement, the Loan Agreements), among JJ Media and Nomura, as lender (the Nomura Lender), administrative agent and collateral agent (the Nomura Collateral Agent).
Pursuant to a security agreement, dated as of November 19, 2009 (the Citi Security Agreement), between JJ Media and the Citi Collateral Agent, JJ Media pledged and granted a security interest in 141,086,135 Ordinary Shares of the Issuer in the form of ADSs to the Citi Collateral Agent to secure its obligation under the Citi Loan Agreement. Pursuant to a personal guarantee, dated as of November 19, 2009 (the Citi Personal Guarantee), Mr. Jiang, as guarantor, agreed to guarantee the payment of all amounts, and the performance of all of JJ Medias obligations, under the Citi Loan Agreement and the other loan documents. In addition, JJ Media issued a note, dated as of November 19, 2009 (the Citi Note), promising to pay to the Initial Lender on the maturity date the principal sum of the Citi Loan or, if less, the aggregate principal amount outstanding of the Loan made by the Lender under the Loan Agreement. On December 9, 2009, in connection with the assumption by Nomura of $42,600,000 of the Citi Loan (of which 41,400,000 had been drawn down), JJ Media entered into an additional set of documents with Nomura, including a security agreement, personal guarantee and note, substantially similar to those described above with regard to the $42,600,000 portion of the loan and 42,325,835 Ordinary Shares of the Issuer in the form of ADSs portion of the collateral that are the subject of the Nomura Loan Agreement.
In order to perfect the security interest of the Citi Collateral Agent, JJ Media entered into a control agreement, dated as of November 19, 2009 (the Citi Control Agreement), with the Citi Collateral Agent and Citigroup Global Markets Inc. (CGMI), placing 13,217,227 Unrestricted ADSs (representing 66,086,135 Ordinary Shares of the Issuer), issued by Citibank N.A., as depositary, into the account of CGMI as collateral under the Citi Loan and having CGMI hold 15,000,000 Restricted ADS (representing 75,000,000 Ordinary Shares of the Issuer), issued by Citibank N.A., as depositary, for the Citi Collateral Agent as collateral under the Citi Loan. On December 9, 2009, JJ Media entered into a substantially similar control agreement with Nomura, placing 3,965,167 of the Unrestricted ADSs (representing 19,825,835 Ordinary Shares of the Issuer) into the account of Nomura as collateral agent under the Nomura Loan and having Nomura hold 4,500,000 of the Restricted ADSs (representing 22,500,000 Ordinary Shares of the Issuer) as collateral under the Nomura Loan.
Public Offering, Capped Call Options, Swap, Pledge, Guaranty and Sales Plan
(1) Public Offering: On September 7, 2010, JJ Media and Mr. Jiang entered into the Underwriting Agreement described in Item 3 hereof pursuant to which JJ Media agreed to sell 8,100,000 ADSs at a price of $18.90 per ADS. Of the 8,100,000 ADSs sold, 5,300,000 ADSs were purchased by Goldman, Sachs & Co.. The remaining 2,800,000 ADSs were purchased by Goldman Sachs International or its affiliate (the variable price seller) with a view to offer such ADSs to the public.
(2) Capped Call Options: Concurrent with the pricing of the registered offering pursuant to the Public Offering described above, JJ Media entered into three capped call transaction confirmations (the Options Agreements) with the variable price seller pursuant to which, JJ Media purchased call options relating to 10,100,000 ADSs with a hedge reference price of $19.25 per ADS. The capped call options under the Options Agreements are divided into a number of components with different expiration dates. Upon the expiration of each component, JJ Media has the right to receive an amount in cash representing any excess of the lesser of the agreed-upon cap price and the volume-weighted average price of the ADSs for the applicable expiration date over the agreed-upon strike price for the capped call transaction. The cash amount receivable by JJ Media pursuant to the Options Agreements is subject to certain anti-dilution and other adjustments and modifications, including, without limitation, adjustments to the number of capped call options upon the occurrence of certain corporate events involving the Issuer or the ADSs. Under the original Options Agreements, such cash amount (in the aggregate for all components) is paid by the variable price seller to JJ Media on the third business day following the expiration date for the last component.
(3) Swap: On September 7, 2010, JJ Media entered into a share swap transaction confirmation (the Swap Agreement) with GSI, with a maturity date on or about October 28, 2010, pursuant to which variable price seller acquired long exposure, and JJ Media acquired short exposure, to 2,000,000 ADSs. The notional amount of the swap was based on such number of ADSs and an initial price of $18.90 per ADS. Under a pledge and security agreement (the Pledge Agreement), JJ Media pledged 2,000,000 ADSs (the Pledged Shares) to secure its obligations under the Swap Agreement. JJ Media retained voting rights and rights to ordinary dividends under the Pledged Shares during the term of the pledge. The swap transaction was cash-settled. Upon settlement, JJ Media paid the variable price seller a fee on the notional amount at the USD Federal Funds Rate, and the variable price seller paid JJ Media the difference between the average of the volume-weighted average price of the ADSs over the valuation period and the initial price. Upon settlement, the Pledged Shares were released and returned to JJ Media.
(4) Guaranty: On September 7, 2010, Mr. Jason Nanchun Jiang entered into a Guaranty (the Guaranty) in favor of GSI. The Guaranty was entered into to guarantee the payment of all amounts, and the performance of all obligations, by JJ Media under the Capped Call Options, Swap and the other transaction documents relating to the Capped Call Options and Swap.
(5) 10b5-1 Plan: Concurrent with the pricing of the Public Offering, JJ Media entered into a share sale plan (the Sales Plan) in reliance on Rule 144 under the Securities Act and Rule 10b5-1 under the Exchange Act with a broker-dealer affiliate of GSI (the Seller). Under the Sales Plan, the Seller sold on behalf of JJ Media up to a maximum of 2,000,000 ADSs subject to the conditions and terms of the Sales Plan. The dates of the sales under the Sales Plan were intended to coincide with the valuation period under the Swap Agreement.
Forms of the Underwriting Agreement, Options Agreements, Pledge Agreement, Swap Agreement, Guaranty and 10b5-1 Plan are attached as Exhibits 13, 14, 15, 16, 17 and 18, respectively, and are incorporated herein by reference.
First Amendment to the Option Agreements
On June 22, 2011, JJ Media entered into amendments to the Options Agreements that had the effect of postponing the expiration of a portion of each of the capped call transactions evidenced by the Options Agreements with expiration to have resumed in September 2011 and the effect of changing the timing of, and amount due upon, settlement of various components of the capped call transactions.
Second Amendment to the Option Agreements
On September 30, 2011, JJ Media entered into further amendments to the Options Agreements, as amended, that had the effect of postponing the expiration of a portion of each of the capped call transactions evidenced by the Options Agreements, as amended, with expiration to have resumed in November 2011 and the effect of amending the applicable strike and cap prices, and changing the timing of, and amount due upon, settlement of various components of the capped call transactions.
Third Amendment to the Option Agreements
The information contained in Item 5(c) of this Schedule 13D is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits
Exhibit |
Description of Exhibits | |
1. | Subscription Agreement, dated as of September 23, 2009, between JJ Media and the Issuer | |
2. | Margin Loan Agreement, dated as of November 13, 2009, among JJ Media, the Initial Lender, Citibank, N.A., as administrative agent, and the Citi Collateral Agenta* | |
3. | Security Agreement, dated as of November 19, 2009, between JJ Media and the Citi Collateral Agenta* | |
4. | Control Agreement, dated as of November 19, 2009, among JJ Media, the Citi Collateral Agent and Citigroup Global Markets Inc.a | |
5. | Note, dated as of November 19, 2009, issued by JJ Media a | |
6. | Personal Guaranty of Jason Nanchun Jiang, dated as of November 19, 2009 | |
7. | The Agreement, dated as of December 9, 2009, among JJ Media, the Initial Lender and Nomuraa | |
8. | Margin Loan Agreement, dated as of December 9, 2009, among JJ Media and Nomura as lender, administrative agent, and collateral agenta* | |
9. | Security Agreement, dated as of December 9, 2009, between JJ Media and the Nomura Collateral Agenta* | |
10. | Control Agreement, dated as of December 9, 2009, among JJ Media and Nomura, as collateral agent and intermediary | |
11. | Nomura Note, dated as of December 9, 2009, issued by JJ Mediaa | |
12. | Nomura Personal Guaranty of Jason Nanchun Jiang, dated as of December 9, 2009 | |
13. | Underwriting Agreement, dated as of September 7, 2010, among the Issuer, JJ Media, Jason Nanchun Jiang and Goldman, Sachs & Co. | |
14. | Capped Call Transaction Master Confirmation, dated September 7, 2010, between Goldman Sachs International and JJ Mediaa* | |
15. | Confirmations 1, 2 and 3, each dated September 7, 2010, between Goldman Sachs International and JJ Mediaa* | |
16. | Swap Confirmation, dated September 7, 2010, between Goldman Sachs International and JJ Mediaa | |
17. | Supplemental Swap Confirmation, dated September 7, 2010, between Goldman Sachs International and JJ Mediaa* | |
18. | Pledge and Security Agreement, dated as of September 7, 2010, between JJ Media and Goldman Sachs Internationala | |
19. | Guaranty, dated as of September 7, 2010, between Jason Nanchun Jiang and Goldman Sachs Internationala | |
20. | Sales Plan, dated as of September 7, 2010, between JJ Media and Goldman, Sachs & Co, and acknowledged by the Issuera | |
21. | Amendments to Confirmations 1, 2 and 3, each dated June 22, 2011, between Goldman Sachs International and JJ Mediaß* | |
22. | Joint Filing Agreementß | |
23. | Amendments to Confirmations 1, 2 and 3, each dated September 30, 2011, between Goldman Sachs International and JJ Media.d | |
24. | Amendments to Confirmations 1, 2 and 3, each dated November 22, 2011, between Goldman Sachs International and JJ Media.¯ |
* | Confidential treatment has been granted. |
| Previously filed with the Schedule 13D of JJ Media and Mr. Jiang, dated February 5, 2010. |
| Incorporated by reference from Exhibit 1.1 included in the Form 6-K of the Issuer, dated September 8, 2010. |
a | Previously filed with Amendment No. 1 to the Schedule 13D of JJ Media and Mr. Jiang, dated September 10, 2010. |
ß | Previously filed with Amendment No. 2 to the Schedule 13D of JJ Media and Mr. Jiang, dated June 29, 2011. |
d | Previously filed with Amendment No. 3 to the Schedule 13D of JJ Media and Mr. Jiang, dated October 4, 2011. |
¯ | Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC. |
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.
/s/ Jason Nanchun Jiang | ||
Jason Nanchun Jiang | ||
JJ MEDIA INVESTMENT HOLDING LIMITED | ||
By: | /s/ Jason Nanchun Jiang | |
Name: | Jason Nanchun Jiang | |
Title: | Chairman |
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 Peoples 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 ConfirmationCapped 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 Peoples 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 ConfirmationCapped 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 Peoples 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 ConfirmationCapped 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%) | ||||||
[***] | [***] | [***] | [***] | [***] | [***] | [***] |