sc13dza

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EbT8004s17cFuIVYRSpUJr5ZrP7GTgCefh2X9HkTqTLYi4Y0az55vyWNVl2694pF KXAzpPDPoEZ5fuXgTG1Itg== 0000950123-11-001056.txt : 20110106 0000950123-11-001056.hdr.sgml : 20110106 20110106160632 ACCESSION NUMBER: 0000950123-11-001056 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20110106 DATE AS OF CHANGE: 20110106 GROUP MEMBERS: NEW-WAVE INVESTMENT HOLDING COMPANY LIMITED FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CHAO CHARLES GUOWEI CENTRAL INDEX KEY: 0001248826 FILING VALUES: FORM TYPE: SC 13D/A SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SINA CORP CENTRAL INDEX KEY: 0001094005 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 522236363 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60461 FILM NUMBER: 11514360 BUSINESS ADDRESS: STREET 1: 1313 GENEVA DRIVE CITY: SUNNYVALE STATE: CA ZIP: 94089 BUSINESS PHONE: 4085480000 MAIL ADDRESS: STREET 1: 1313 GENEVA DRIVE CITY: SUNNYVALE STATE: CA ZIP: 94089 FORMER COMPANY: FORMER CONFORMED NAME: SINA COM DATE OF NAME CHANGE: 19990827 SC 13D/A 1 f57734sc13dza.htm SC 13D/A sc13dza

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934
Amendment No. 4

SINA Corporation

(Name of Issuer)

Ordinary Shares, par value $0.133

(Title of Class of Securities)

G81477104

(CUSIP Number)

Charles Chao
New-Wave Investment Holding Company Limited
20/F Ideal International Plaza
No. 58 Northwest 4^th Ring Road
Haidian District, Beijing, People’s Republic of China
Telephone: +86 10 5898 3005

(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)

with a copy to:
Lee Edwards
Shearman & Sterling LLP
12^th Floor, East Tower, Twin Towers
B-12 Jianguomenwai Dajie
Beijing, People’s Republic of China
+86 10 5922 8000

December 31, 2010

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box o.

* The remainder of this cover page shall be filled out for a reporting person’s 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 (the “Exchange 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).

SCHEDULE 13D

CUSIP No.

G81477104

Page

Pages

NAME OF REPORTING PERSONS

New-Wave Investment Holding Company Limited

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) o

(b) o

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

OO, BK

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

British Virgin Islands

SOLE VOTING POWER

NUMBER OF

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

5,608,612 ordinary shares

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

WITH

SHARED DISPOSITIVE POWER

5,608,612 ordinary shares

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,608,612 ordinary shares

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

9.08%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

SCHEDULE 13D

CUSIP No.

G81477104

Page

Pages

NAME OF REPORTING PERSONS

Charles Chao

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) o

(b) o

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

United States of America

SOLE VOTING POWER

NUMBER OF

94,377 ordinary shares

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

5,608,612 ordinary shares

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

94,377 ordinary shares

WITH

SHARED DISPOSITIVE POWER

5,608,612 ordinary shares

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,702,989 ordinary shares

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

9.23%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

Item 1. Security and Issuer.

This Amendment No. 4 to Schedule 13D (this “Amendment No. 4”) amends the statement on Schedule 13D filed on December 7, 2009 (the “Initial Schedule 13D”), as amended by Amendment No. 1 filed on December 11, 2009, Amendment No. 2 filed on April 27, 2010 and Amendment No. 3 filed on September 16, 2010 (together with the Initial Schedule 13D, the “Schedule 13D”), which relates to the ordinary shares, par value $0.133 per share (the “Shares”), of SINA Corporation, a company organized under the laws of the Cayman Islands (the “Company”), whose principal executive offices are located at 37F, Jin Mao Tower, 88 Century Boulevard, Pudong, Shanghai 200121, China.

Item 4. Purpose of Transaction.

The information set forth below is hereby inserted immediately preceding to “Registration Rights Agreement” in Item 4 of the Schedule 13D:

On December 31, 2010, in connection with a prepaid variable share forward sale transaction (the “Second Transaction”), New-Wave and BANA entered into (i) a preliminary agreement (the “Second Transaction Acknowledgement”), which provides that BANA may sell up to approximately 1,000,000 Shares, (ii) a trade confirmation to confirm the terms and conditions of the Transaction (the “Second Confirmation”) , and (iii) an addendum that complies with Rule 10b5-1 promulgated under the Exchange Act, which supplements the Second Transaction Acknowledgement and the Second Confirmation (the “Addendum”). In connection with entering into the Second Confirmation, New-Wave also executed a pledge agreement (the “Second Pledge Agreement”) on December 31, 2010.

Other than the total number of Shares subject to the transactions and the inclusion of the Addendum, the Second Transaction has substantially the same terms with the Transaction. The description of the Second Transaction Acknowledgement, the Second Confirmation, the Addendum, and the Second Pledge Agreement contained herein is qualified in its entirety by reference to Exhibits I, J, K, and L, which are incorporated herein by reference.

Item 5. Interest in Securities of the Issuer

The third paragraph of item 5 of the Schedule 13D is hereby amended in its entirety and replaced with the following:

Charles Chao is the direct owner of 94,377 Shares, representing 0.15% of the Shares outstanding. By virtue of being the director selected by the Management Shareholders, Charles Chao has the power to direct the voting and disposition of 5,608,612 Shares. Accordingly, Charles Chao is the beneficial owner of 5,702,989 Shares, representing 9.23% of the Shares outstanding.

The fourth paragraph of item 5 of the Schedule 13D is hereby amended in its entirety and replaced with the following:

The percentages of the class of securities beneficially owned by New-Wave and Charles Chao contained in this Amendment No. 4 are based on 61,774,706 Shares outstanding as at January 4, 2011, as provided by the Company.

Item 7. Material to Be Filed as Exhibits.

Item 7 of the Schedule 13D is hereby amended in its entirety and replaced with the following:


Exhibit No.		Description

A*		Joint Filing Agreement, dated as of December 7, 2009, between New-Wave Investment Holding Company Limited and Charles Chao

B*		Share Subscription Agreement, dated as of September 22, 2009 and as amended on September 23, 2009 and November 14, 2009, between SINA Corporation and New-Wave Investment Holding Company Limited

C**		Margin Loan Agreement, dated as of November 25, 2009, between New-Wave Investment Holding Company and Merrill Lynch International

D**		Shareholders Agreement, dated as of November 25, 2009, among the Management Shareholders listed on Schedule 1 thereto, CITIC Capital MB Investment Limited, CITIC Capital China Access Fund Limited, Early Success International Limited, FV Green Alpha Three Limited, SCGF New Wave Limited and New-Wave Investment Holding Company Limited

E*		Amended and Restated Registration Rights Agreement, dated as of November 24, 2009, between SINA Corporation and New-Wave Investment Holding Company Limited

F***		Transaction Acknowledgement and Preliminary Agreement, dated as of September 13, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.

G***		Form of the Confirmation between New-Wave Investment Holding Company Limited and Bank of America, N. A.

H****		Form of the Pledge Agreement among New-Wave Investment Holding Company Limited, Bank of America, N. A. and Merrill Lynch, Pierce, Fenner & Smith as


Exhibit No.		Description

		custodian.

I*****		Transaction Acknowledgement and Preliminary Agreement, dated as of December 31, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.

J*****		Confirmation, dated as of December 31, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.

K*****		Forward Sales Plan (Rule 10b5-1) Addendum, dated as of December 31, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.

L		Pledge Agreement, dated as of December 31, 2010 among New-Wave Investment Holding Company Limited, Bank of America, N. A and Merrill Lynch, Pierce, Fenner & Smith as custodian.


*		Filed with Amendment No. 1 to the Initial Schedule 13D.

**		Filed with Amendment No. 2 to the Initial Schedule 13D. Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC.

***		Filed with Amendment No. 3 to the Initial Schedule 13D. Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC.

****		Filed with Amendment No. 3 to the Initial Schedule 13D.

*****		Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated:


January 6, 2011	NEW-WAVE INVESTMENT HOLDING LIMITED
	/s/ Charles Guowei Chao
	Signature

	Charles Guowei Chao/Director
	Name/Title

	CHARLES GUOWEI CHAO
	/s/ Charles Guowei Chao
	Signature

EXHIBIT INDEX


Exhibit No.		Description

A*		Joint Filing Agreement, dated as of December 7, 2009, between New-Wave Investment Holding Company Limited and Charles Chao

B*		Share Subscription Agreement, dated as of September 22, 2009 and as amended on September 23, 2009 and November 14, 2009, between SINA Corporation and New-Wave Investment Holding Company Limited

C**		Margin Loan Agreement, dated as of November 25, 2009, between New-Wave Investment Holding Company and Merrill Lynch International

D**		Shareholders Agreement, dated as of November 25, 2009, among the Management Shareholders listed on Schedule 1 thereto, CITIC Capital MB Investment Limited, CITIC Capital China Access Fund Limited, Early Success International Limited, FV Green Alpha Three Limited, SCGF New Wave Limited and New-Wave Investment Holding Company Limited

E*		Amended and Restated Registration Rights Agreement, dated as of November 24, 2009, between SINA Corporation and New-Wave Investment Holding Company Limited

F***		Transaction Acknowledgement and Preliminary Agreement, dated as of September 13, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.

G***		Form of the Confirmation between New-Wave Investment Holding Company Limited and Bank of America, N. A.

H****		Form of the Pledge Agreement among New-Wave Investment Holding Company Limited, Bank of America, N. A. and Merrill Lynch, Pierce, Fenner & Smith as custodian.

I*****		Transaction Acknowledgement and Preliminary Agreement, dated as of December 31, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.


Exhibit No.		Description

J*****		Confirmation, dated as of December 31, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.

K*****		Forward Sales Plan (Rule 10b5-1) Addendum, dated as of December 31, 2010, between New-Wave Investment Holding Company Limited and Bank of America, N. A.

L		Pledge Agreement, dated as of December 31, 2010 among New-Wave Investment Holding Company Limited, Bank of America, N. A and Merrill Lynch, Pierce, Fenner & Smith as custodian.


*		Filed with Amendment No. 1 to the Initial Schedule 13D.

**		Filed with Amendment No. 2 to the Initial Schedule 13D. Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC.

***		Filed with Amendment No. 3 to the Initial Schedule 13D. Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC.

****		Filed with Amendment No. 3 to the Initial Schedule 13D.

*****		Confidential treatment has been requested. Confidential material has been redacted and separately filed with the SEC.

EX-99.I 2 f57734exv99wi.htm EX-99.I exv99wi

Exhibit I

*** Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.

December 31, 2010

New-Wave Investment Holding Company Limited
Attn: Charles Guowei Chao, Chief Executive Officer
20/F Ideal International Plaza
No. 58 Northwest 4^th Ring Road
Haidian District, Beijing, People’s Republic of China

This Transaction Acknowledgement confirms certain economic terms and conditions of the STARS variable share prepaid forward transaction (the “Transaction”) that you have agreed to enter into with Bank of America, N.A. (“Bank of America”). This summary and the Forward Sales Plan Addendum entered into as of the date hereof (the “Addendum”) will accompany (i) the trade confirmation for the Transaction (the “Confirmation”), which incorporates the terms of the 1992 or 2002 ISDA Master Agreement (as identified in the Confirmation) and Schedule thereto (the “Agreement”) and is governed by the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”) as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) and the 2000 ISDA Definitions (together with the Annex thereto) as published by ISDA, copies of which are available from us upon request and if not previously furnished to you by us, (ii) the Supplemental Confirmation, and (iii) the Pledge Agreement. The Confirmation will be signed by you on the date hereof and final specification of amounts expressed below as approximate or, where expressed as percentages or in U.S. Dollars (“USD”) will be confirmed in the Confirmation as supplemented by the Supplemental Confirmation. In the Transaction, Bank of America acts as counterparty and not as an advisor or fiduciary, and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPF&S) acts as agent for both you and Bank of America unless you are a “qualified investor” under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in which case MLPF&S acts solely as arranger for Bank of America.ⁱ This Transaction Acknowledgment is being entered into, together with the other Forward Sales Documents (as defined in the Addendum), for the purpose of establishing a sales “contract, instruction, or plan” for the Transaction that complies with the requirements of Rule 10b5-1(c)(1) under the Exchange Act.

Capitalized terms used herein and not otherwise defined shall have the meanings set forth in (i) the Confirmation, (ii) the Agreement, (iii) the Equity Definitions and (iv) the 2000 ISDA Definitions (together with the Annex thereto). Summaries herein of terms or provisions used in any of the foregoing documents are qualified in their entirety by reference to such documents.


Transaction:		Forward sale Transaction between Party A as Buyer and Party B as Seller relating to the Shares

Party A:		Bank of America

Party B:		New-Wave Investment Holding Company Limited

Agent/Arranger:		MLPF&S, per above

Shares:		The common stock of SINA Corporation (the “Issuer”) (Exchange Symbol “SINA”)

Exchange:		Nasdaq Stock Market

Related Exchange:		All Exchanges

Initial Share Price:		The volume weighted average price per Share, as determined by the Calculation Agent, at which Party A or an affiliate of Party A, hedges its initial equity price risk in respect of the Transaction by selling in the market, subject to market conditions, a number of Shares that the Calculation Agent determines are necessary and appropriate in order to hedge such equity price risk (such number of Shares, “Party A’s Initial Hedge”).


ⁱ		Where MLPF&S acts as agent for both you and Bank of America, you will also receive promptly after the Trade Date one or more computer-generated short form MLPF&S trade confirmation meeting the requirements of Rule 10b-10 of the Securities and Exchange Commission (“SEC”) pursuant to the Exchange Act (the “Rule 10b-10 Confirmation”). Any Rule 10b-10 Confirmation will provide that the Transaction is between you and Bank of America only, is to be settled directly between you and Bank of America and that MLPF&S has acted as agent only and has no further obligations with respect to the Transaction. All Rule 10b-10 Confirmation will be superseded by the Confirmation (as defined above), which will control in the event of any conflict or inconsistency. To the extent that a Rule 10b-10 Confirmation describes the Transaction by reference to component or embedded derivatives, this solely reflects mandatory broker-dealer reporting requirements applicable to MLPF&S and is not intended by Bank of America, MLPF&S to affect any other legal, regulatory, accounting or tax characterization, treatment or reporting applicable to Party B.


Plan Effective Period:		Each Exchange Business Day, from and including the first Exchange Business Day after the date hereof, to and including the Trade Date (subject to the Cutoff Date as defined below), on which Party A, or an affiliate thereof, is selling Shares in the market in order to determine the Initial Share Price.

Cutoff Date:		[***], whereby if, at close of business on the Cutoff Date Party A’s Initial Hedge has not been completed with respect to the full Number of Shares subject to the Transaction, the Cutoff Date will be deemed to be the Trade Date, and Calculation Agent will determine the Number of Shares based on proportionate hedging activities and the theoretical delta of the Transaction as described in this Transaction Acknowledgement and the other Supplemental Terms (as defined in the Addendum).

Trade Date:		The earliest of (x) the Exchange Business Day on which Party A determines the Initial Share Price, (y) the Trade Date as determined in accordance with clause (c) of the Section titled “Execution Plan” in the Addendum, or (z) the Cutoff Date.

Number of Shares:		The number of shares which shall not exceed 1,000,000 Shares (the “Maximum Number of Shares”). Subject to the provisions opposite the caption “Cutoff Date” above, and adjustments to reflect any buy back, stock split or similar event.

Prepayment Amount:		The product of the Initial Share Price times [***] times the Number of Shares, subject to market conditions, payable by Party A to Party B on the Prepayment Date

Prepayment Date:		Three (3) Currency Business Days immediately following the Trade Date

Maturity Dates:		[*] Exchange Business Days beginning [*] months from the Trade Date, unless such date is a Disrupted Day where the Exchange or Related Exchange fails to open for trading during its regular trading session or where a Market Disruption Event has occurred. If such day is a Disrupted Day, such Maturity Date shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day.

Valuation Dates:		Each Maturity Date

Forward Floor Price:		[***] of the Initial Share Price

Forward Cap Price:		[***] of the Initial Share Price

Settlement:		Physical, with the option to elect cash settlement. Except as otherwise permitted by the Confirmation, settlement shall be by physical delivery by Party B to Party A on the Settlement Dates of a number of unrestricted, freely transferable shares equal to the Number of Shares to be Delivered.

Number of Shares to be Delivered:		(i) if the Settlement Price is less than or equal to the Forward Floor Price, the Number of Shares allocable to each Valuation Date; (ii) if the Settlement Price is greater than the Forward Floor Price but less than or equal to the Forward Cap Price, a number of shares equal to the product of (x) Number of Shares allocable to each Valuation Date times (y) the Forward Floor Price divided by the Settlement Price; (iii) if the Settlement Price is greater than the Forward Cap Price, a number of Shares equal to the product of (x) the Number of Shares allocable to each Valuation Date times (y) the quotient of (i) the Forward Floor Price + (Settlement Price —Forward Cap Price), divided by (ii) the Settlement Price

Settlement Price:		The Closing Price per Share on each Valuation Date

Closing Price:		Closing Price shall mean with respect to the Valuation Date, the Nasdaq Official Closing Price (the “NOCP”) as of the Valuation Time on such date, as reported in the official price dissemination mechanism for the Exchange.

Settlement Dates:		Three (3) Exchange Business Days after each Maturity Date.

Physical Settlement Fee:		Party B shall pay to Party A an amount equal to the product of the Number of Shares to be Delivered times USD [***], payable in USD on the Settlement Date.


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.



Market Disruption Event:		The occurrence or existence of: (i) a “Trading Disruption”, which means any suspension of or limitation imposed on trading by the Exchange or Related Exchange, (ii) an “Exchange Disruption”, which means any event that disrupts or impairs (as determined by the Calculation Agent) the ability of market participants in general to effect transactions in, or obtain market values for, the Shares or for futures or option contracts relating to the Shares, which, in either case, the Calculation Agent determines is material, at any time during the one hour period that ends at the Valuation Time, or (iii) an “Early Closure”, which means the closure on any Exchange Business Day of the relevant exchange or any Related Exchange prior to its Scheduled Closing Time (unless announced at least one hour prior to the earlier of the actual closing time or deadline for submission orders).

Tax, Legal, and Regulatory Issues:		Party B has consulted appropriate outside advisors regarding any relevant tax, legal or regulatory issues relating to this Transaction, and is not relying on Party A, MLPF&S or any of its affiliates for such advice. Party B has taken independent tax advice with respect to this Transaction to the extent Party B has deemed appropriate. Eligibility for the reduced Federal tax rate on dividend income may be affected by hedging transactions. Party A, MLPF&S and their affiliates do not render tax or legal advice; please consult your independent tax and legal advisor prior to entering into any transaction with Party A. Please see “Documentation” below.

Documentation:		Documentation will be (i) the Confirmation, (ii) the Addendum, and (ii) the Pledge Agreement securing Party B’s obligations hereunder and under the Confirmation (together with the Supplemental Confirmation). A signed copy of the Pledge Agreement is due to Bank of America contemporaneously with or prior to the delivery of this Transaction Acknowledgment.

		Except as otherwise provided therein, the Confirmation (together with the Supplemental Confirmation) will be subject to the 1992 or 2002 ISDA Master Agreement (as specified in the Confirmation), the Equity Definitions and the 2000 ISDA Definitions (together with the Annex thereto). A signed Confirmation by you and the required opinions are due to Bank of America contemporaneously with or prior to the delivery of this Transaction Acknowledgment. Party B will also execute the Supplemental Confirmation in accordance with the Addendum.

		Sections 13.1 (Non-Reliance), 13.2 (Agreements and Acknowledgments Regarding Hedging Activities) and 13.4 (Additional Acknowledgments) of the Equity Definitions shall apply in the Confirmation to each of Party A and Party B.

Obligations with Respect to Extraordinary Dividends and Excess Cash Dividends:		In the case of an Extraordinary Dividend or Excess Cash Dividend (both as defined below), Party B will make a payment or delivery to Party A, as the case may be, to an account designated by Party A on the date such Extraordinary Dividend or Excess Cash Dividend is paid or delivered by the Issuer to holders of Shares, of an amount equal to the product of the Number of Shares and the per share amount (or quantity of other property) of such Extraordinary Dividend or Excess Cash Dividend, as determined by the Calculation Agent.

Extraordinary Dividend:		As determined by the Calculation Agent, any dividend or distribution, regardless of whether in cash, on the Shares for which the ex-dividend date occurs from but excluding the Trade Date to and including the final Maturity Date, that is not an ordinary cash dividend, including without limitation (i) any dividend or distribution declared on the Shares at a time at which the Issuer has not previously declared or paid dividends or distributions on such Shares for the prior four quarterly periods, (ii) any payment or distribution by the Issuer to holders of Shares that the Issuer announces will be an “extraordinary” or “special” dividend or distribution, (iii) any payment by the Issuer to holders of Shares out of the Issuer’s capital and surplus or (iv) any other “special” dividend or distribution on the Shares that is, by its terms or declared intent, outside the normal course of operations or normal dividend policies or practices of the Issuer.

Excess Cash Dividend:		That portion, if any, of the per Share amount of any ordinary cash dividend that, together with the amount of all previous ordinary cash dividends, if any, for which the ex-dividend date occurs within the same Contractual Dividend Period, exceeds the Contractual Dividend Amount for such Contractual Dividend Period, as determined by the Calculation Agent.

Contractual Dividend Amount:		USD 0.00 per share per quarter, (such quarter beginning on, but excluding the Trade Date, and ending on and including the final Maturity Date, and referred to as the “Contractual Dividend Period”), subject to adjustment by the Calculation Agent in accordance with Calculation Agent Adjustment to account for any Potential Adjustment and subject to adjustment by the Calculation Agent to account for any Spin-off.


Consequences of Certain Potential Adjustment Events:	Calculation Agent Adjustment, where the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the theoretical value of the Shares or options on the Shares and if so, may make appropriate adjustments to the terms of the Transaction as the Calculation Agent determines appropriate to account for such material effect (including adjustments to account solely for changes in volatility, expected dividends, stock loan rate, or liquidity relative to the relevant Shares).

Consequences of Merger Events:	Share-for-Share: Share-for-Other: Share-for-Combined:	Modified Calculation Agent Adjustment Modified Calculation Agent Adjustment Component Adjustment

Consequences of Nationalization, Insolvency, or De-Listing:	Cancellation and Payment, provided that, following a spin-off in which basket adjustments are applicable, Partial Cancellation and Payment shall apply

Consequences of Tender Offers:	Share-for-Share: Share-for-Other: Share-for-Combined:	Modified Calculation Agent Adjustment Modified Calculation Agent Adjustment Modified Calculation Agent Adjustment

Additional Disruption Events:	The following shall be Additional Disruption Events as of the date hereof, upon the occurrence of which Party A and Party B shall have the rights and obligations specified in the Confirmation with respect to such Additional Disruption Events:

	“Hedging Disruption”: If Party A is unable, after using commercially reasonable efforts, to (A) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transactions(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations with respect to this Transaction, or (B) realize, recover or remit the proceeds of any such transaction(s) or asset(s).

	“Increased Cost of Hedging”: If Party A would incur a materially increased (versus circumstances on the Trade Date) amount of tax, duty, expense or fee to (A) acquire, establish, re-establish, substitute, maintain, unwind, or dispose of any transaction(s) or asset(s) it deems necessary to hedge the equity price and risk of entering into and performing its obligations with respect to the Transaction, or (B) realize, recover or remit the proceeds of any such transaction(s) or asset(s).

	“Increased Cost of Stock Borrow”: If Party A would incur a rate to borrow Shares in respect of this Transaction that is greater than [***] basis points per annum.

	“Loss of Stock Borrow”: If Party A is unable, after using commercially reasonable efforts, to borrow (or maintain a borrowing of) a number of Shares necessary to hedge the equity and price risk of entering into and performing its obligations with respect to the Transaction at a rate equal to or less than [***] basis points per annum.

	“Insolvency Filing” or “Change in Law” as defined in the Equity Definitions and the Confirmation shall be “Additional Disruption Events”.

Additional Considerations:	Party B agrees (A) that the underlying collateral will be delivered to Bank of America, or an affiliate of Bank of America on or prior to the date hereof, (B) to cause all of the conditions precedent described in Section 2 of the Confirmation to be satisfied contemporaneously with or prior to the delivery of this Transaction Acknowledgment.

	Party A shall have no obligations to execute the Transaction if the conditions are not satisfied in the time periods set forth in the preceding sentence.

Events of Default:	The Events of Default (including, but not limited to, failure to pay or deliver, breach of agreement, misrepresentation, cross-default, credit support default and bankruptcy) and remedies contained in the 1992 ISDA Master Agreement or 2002 ISDA Master Agreement (as identified in the Confirmation) and incorporated by reference in the most recent draft, if any, of the Confirmation provided by Party A to Party B are deemed repeated and incorporated herein.


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.


Collateral:		As security for all obligations of Party B to Party A or any of its affiliates, now or hereafter existing, including but not limited to this Transaction, together with any and all amendments, extensions and renewals thereof (the “Obligations”), Party B hereby grants Party A a perfected first priority security interest in a number of Shares, including all proceeds thereof (the “Collateral”), equal to the Number of Shares, and the Obligations shall be part of the obligations secured pursuant to Section 2 of the Pledge Agreement, and all of the rights and remedies under the Pledge Agreement shall be applicable to the Obligations.

Representations and Agreements of Party B:		Party B hereby makes the following representations and agreements to Party A on each day during the Plan Effective Period:

		1. Recent Sales and Hedges: The number of Shares (or security entitlements in respect thereof) sold by Party B during the preceding three (3) months is zero.

		2. Subsequent Sales and Hedges: Party B agrees that it shall not, without the prior written consent of Party A, sell any Shares (or security entitlements in respect thereof) until the Prepayment Date. Until such time, Party B shall promptly notify Party A of any sales by persons attributable to Party B (as described below). For the purposes of representations (1) and (2), (i) Shares shall be deemed to include securities convertible into or exchangeable or exercisable for Shares; (ii) sales shall include hedges (through swaps, options, short sales or otherwise) of any long position in the Shares (or security entitlements in respect thereof) and (iii) sales and hedges by Party B shall include those by any person attributable to Party B for purposes of Rule 144 under the Securities Act, as amended (“Rule 144”).

		3. No violation: None of the transactions contemplated by this Transaction Acknowledgement and Preliminary Agreement will violate or conflict with any corporate policy, contractual agreement (other than any conflict with the Shareholders Agreement of Party B to be waived pursuant to a written consent of the shareholders of Party B) or other rules or regulations of the Issuer or its affiliates applicable to Party B, including, but not limited to, the Issuer’s window period policy.

		4. No Information: The representations made by Party B regarding material, non-public information in the Addendum are incorporated herein by reference.

		5. Incorporation by Reference: Party B’s representations and warranties contained or incorporated by reference in the Confirmation provided by Party A to Party B are deemed repeated and incorporated herein.

		6. Holding Period: Party B acquired and made full payment for all Shares (or security entitlements in respect thereof), that are the subject of this Transaction Acknowledgement and Preliminary, Agreement on November 25, 2009.

Representations and Agreements of the Parties:		Section 3(a) and Section 3(aA) of the Confirmation are hereby incorporated by reference, and shall have the same effect as if set forth in full herein.

By entering into the Transaction, you acknowledge that you understand that a variety of risks, circumstances and events can materially affect the value of the Transaction to you after the Trade Date. These risks include, but are not limited to, Market Disruption Events, Merger Events, Tender Offers, Dividends, other corporate or third party events and circumstances affecting the Shares, options on the Shares or Party A’s ability to continue to hedge the market risk of the Transaction to term. In the case of some of these events, the Confirmation may permit or require Bank of America, N.A., as Calculation Agent or as principal (Party A), to adjust certain economic terms of the Transaction or take other actions. These changes or actions could be favorable or unfavorable to you, depending on the circumstances, and may be required or permitted to be made with a view to the interests of Party A as a market risk intermediary or otherwise, or due to the fact that Party A may have entered into hedging transactions for its own account. These terms merit your serious consideration and you represent that you have consulted with your independent legal and other advisors prior to entering into the Transaction. By entering into the Transaction, you also acknowledge that you understand and accept the risks and waive any conflict of interest resulting from the fact that (i) Party A and MLPF&S are affiliated by common ownership, (ii) where MLPF&S acts as your agent, MLPF&S is also acting as agent for its affiliate, Party A, (iii) MLPF&S may hold collateral posted by you or on your behalf in connection with the Transaction in a collateral account for Party A, in which case MLPF&S shall be entitled to comply with directions of Party A with respect to such collateral without your further consent and (iv) in some instances Bank of America as Calculation Agent may be permitted or required to act with a view to the interests of Bank of America.

You acknowledge that upon our receipt of your signature by fax as requested below, we will enter into hedging transactions in reliance on your consent to this Transaction Acknowledgement. Upon your signed consent, this Transaction Acknowledgement will constitute a “Preliminary Agreement” within the meaning of the Rule 144 interpretive letter from the SEC dated December 20, 1999 and be governed by the laws of the State of New York without reference to choice of law principles.

Please indicate your understanding of and agreement with the above terms and conditions and your instruction for Bank of America to begin execution by signing below, and returning this Transaction Acknowledgement to us by fax at 212-230-8325 and by returning originals to us at:

Global Equity Derivatives
c/o Merrill Lynch, Pierce Fenner & Smith Incorporated
One Bryant Park, 5^th Floor
New York, NY 10036

[Signature page follows.]

Agreed to and accepted on the date first written by:


NEW-WAVE INVESTMENT HOLDING COMPANY LIMITED
/s/ Charles Guowei Chao
Charles Guowei Chao, Chief Executive Officer


BANK OF AMERICA, N.A.
/s/ Brian D. Gray
Brian D. Gray
Authorized Signatory

EX-99.J 3 f57734exv99wj.htm EX-99.J exv99wj

Exhibit J


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.



SPECIALIZED TERM APPRECIATION RETENTION SALE (STARS)		EQUITY FINANCIAL PRODUCTS GROUP

December 31, 2010

From: Bank of America, N.A.
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as agent or arranger (as provided herein)
Bank of America Tower at One Bryant Park
New York, NY 10036
Attention: Legal Department
Telephone: 646-855-7127
Facsimile: 704-208-2869

To: New-Wave Investment Holding Company Limited
20/F Beijing Ideal International Plaza
No. 58 Northwest 4th Ring Road
Haidian District, Beijing, 100080
People’s Republic of China
Attention: Chief Executive Officer

Reference Number: As specified in the Supplemental Confirmation

Dear Sir or Madam:

The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the transaction entered into between Bank of America, N.A. (“Party A”) and New-Wave Investment Holding Company Limited (“Party B”) on the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the Agreement specified below. In the Transaction, Party A acts as counterparty only and not as an advisor or fiduciary to Party B, and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPF&S”) acts as agent for both Party A and Party B, unless Party B is a “qualified investor” under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in which case MLPF&S acts solely as an arranger for Party A, as further described below.

As of the date hereof (the “Commencement Date”), Party A and Party B have entered into the Forward Sales Plan Addendum (as hereafter amended, modified, supplemented, replaced or amended and restated, the “Addendum”) to, among other things, evidence that the parties hereto intend for the Forward Sales Documents (as defined in the Addendum), including this Confirmation, to constitute binding contract or instruction satisfying the requirements of Rule 10b5-1(c) under the Exchange Act. This Addendum is made a part of, shall supplement, and is subject to this Confirmation. This Confirmation, the Addendum, and the Supplemental Confirmation together constitute a “Confirmation” as referred to in the Agreement.

On the Commencement Date, Party A and Party B entered into a letter agreement entitled “Transaction Acknowledgment” (the “Transaction Acknowledgment”) in connection with the Transaction. On the Prepayment Date, the Transaction Acknowledgment and any Rule 10b-10 confirmation will be superseded in accordance with the Addendum.

Page 1 of 22

The definitions and provisions contained in (i) the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”) as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) and (ii) the 2000 ISDA Definitions (and Annex thereto) (the “2000 Definitions”) as published by ISDA are incorporated into this Confirmation. This Confirmation and the Supplemental Confirmation evidence a binding agreement between Party A and Party B as to the terms of the Transaction. In the event of any inconsistency between the Equity Definitions, the 2000 Definitions and this Confirmation, this Confirmation shall govern. In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions shall govern. For purposes of the Equity Definitions, the Transaction is a Share Forward Transaction.

Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.

In lieu of negotiating an ISDA Master Agreement and Schedule, Party A and Party B hereby agree that an agreement in the form of the 2002 ISDA Master Agreement (the “2002 ISDA Form”) as first published by ISDA in 2002, without any Schedule attached thereto, but containing all elections, modifications and amendments to the 2002 ISDA Form contained herein (as so supplemented, the “Agreement”), shall be deemed to have been executed by both of us on the Trade Date of the first “Transaction” (as defined in the 2002 ISDA Form) between us. This Confirmation and the Transaction to which it relates, as well as any other Transaction between us (unless otherwise specified in the Confirmation with respect to such other Transaction) shall supplement, form a part of, and be subject to, such Agreement. All provisions contained in, or incorporated by reference to, the Agreement shall govern the Transaction referenced in this Confirmation, as well as all other Transactions between the parties heretofore or hereafter entered into, except as expressly modified herein or therein. In case of any inconsistency between the provisions of the Agreement and this Confirmation, this Confirmation (including any amendments hereto) shall prevail for the purpose of the Transaction. In the case of any inconsistency between the Equity Definitions, the 2000 Definitions, this Confirmation and the Agreement, on the one hand, and the Supplemental Confirmation, on the other hand, the Supplemental Confirmation will govern. This Confirmation, if it relates to the Transaction between us, constitutes both the Agreement and a Confirmation thereunder. If an agreement in the form of the ISDA 1992 Master Agreement (Multicurrency—Cross Border) is already deemed to exist between Party A and Party B due to incorporation by reference in a confirmation or other agreement, but no Transaction (as defined therein) is currently outstanding thereunder, then as of the Trade Date hereunder such agreement and form are hereby amended and restated in their entirety to be the 2002 ISDA Form and the elections, modifications and amendments thereto referred to in the first sentence of this paragraph, and the “Agreement” as used in such confirmation or other agreement shall mean such 2002 ISDA Form as supplemented by such elections, modifications and amendments.

If Party A and Party B subsequently negotiate a 2002 ISDA Master Agreement and Schedule, this Transaction shall be governed thereby only to the extent expressly so agreed by the parties at such time, and in such case, such agreement shall become the “Agreement.” In such event, in case of any inconsistency between the provisions of such Agreement and this Confirmation, this Confirmation (including the Supplemental Confirmation and any amendments hereto) shall prevail for the purpose of this Transaction. With respect to the Transaction, capitalized terms used herein that are not otherwise defined shall have the meanings assigned to them in the Supplemental Confirmation.

Additional terms of each Transaction subject to this Confirmation shall be set forth in the Supplemental Confirmation (as defined in the Addendum).

1. The terms of the Transaction to which this Confirmation and the Supplemental Confirmation relate are as follows:

Page 2 of 22


General Terms:

Trade Date:	As specified in the Supplemental Confirmation.

Buyer:	Party A

Seller:	Party B

Shares:	The common stock, par value USD 0.133 per Share, of SINA Corporation (the “Issuer”) (Exchange symbol “SINA”), or security entitlements in respect thereof.

Components:	The Transaction will consist of individual Components each with the terms and conditions as set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction shall be determined separately for each Component as if such Component were a separate Transaction.

Number of Shares:	[As specified in the Supplemental Confirmation] in the aggregate with respect to the Transaction. For purposes of determining the payments and deliveries to be made upon settlement of any Component, the Number of Shares for such Component shall be as set forth below:

	Component	Number of Shares

	[***]	The amount specified in the Supplemental Confirmation

Prepayment:	Applicable

Variable Obligation:	Applicable

Forward Floor Price:	[the amount specified in the Supplemental Confirmation]

Forward Cap Price:	[the amount specified in the Supplemental Confirmation]

Exchange:	Nasdaq Stock Market

Related Exchange(s):	All Exchanges

Valuation Date:	For each Component, the date specified below for such Component:

	Component:	Valuation Date:

	[***]	The date specified in the Supplemental Confirmation

	provided that if that date is a Disrupted Day, the Valuation Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and that is not and is not deemed


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.

Page 3 of 22


		to be a Valuation Date in respect of any other Component under the Transaction; provided further that if the Valuation Date for any Component has not occurred pursuant to the preceding proviso as of the eighth Scheduled Trading Day following the last scheduled Valuation Date under the Transaction, that eighth Scheduled Trading Day shall be the Valuation Date for such Component (irrespective of whether such day is a Valuation Date in respect of any other Component) and the Calculation Agent shall determine its good faith estimate of the value for the Shares as of the Valuation Time on that eighth Scheduled Trading Day.

Calculation Agent:		Party A

Payment of Prepayment Amount:

Prepayment Amount:		[the amount specified in the Supplemental Confirmation].

Prepayment Date:		The later to occur of the date falling one Settlement Cycle after the Trade Date and the date all of the conditions specified in Section 2 below are satisfied.
Settlement Terms:

For each Component:

Settlement Method Election:		Applicable; provided that (i) the same Settlement Method Election shall apply to all Components and (ii) if, in the reasonable judgment of Party A, Party B would not be able to deliver the Number of Shares to be Delivered with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified herein) would be true and satisfied as of 4:00 P.M. New York City Time on the Settlement Method Election Date as if (x) such date were a Settlement Date, (y) Physical Settlement were applicable and (z) the Number of Shares to be Delivered for such Settlement Date were the aggregate Number of Shares, then Party A shall have the right, but not the obligation, to elect, on or prior to the Settlement Method Election Date, that Party B be deemed to have elected Cash Settlement, notwithstanding any actual or deemed election by Party B to the contrary.

Electing Party:		Party B

Settlement Method Election Date:		The date that is seven Scheduled Trading Days immediately prior to the scheduled Valuation Date for the Component with the earliest scheduled Valuation Date.

Default Settlement Method:		Physical Settlement

Page 4 of 22


Cash Settlement:		If Cash Settlement is applicable, then the following provisions shall apply in lieu of the provisions set forth in Section 8.4 of the Equity Definitions. If Party B elects Cash Settlement, or is deemed to elect Cash Settlement, Party B shall pay the Preliminary Forward Cash Settlement Amount to Party A on the Preliminary Cash Settlement Payment Date. If the Daily Preliminary Forward Cash Settlement Amount exceeds the Forward Cash Settlement Amount, Party A shall pay to Party B the amount of such excess on the Cash Settlement Payment Date. If the Forward Cash Settlement Amount exceeds the Daily Preliminary Forward Cash Settlement Amount, Party B shall pay to Party A the amount of such excess on the Cash Settlement Payment Date.

Preliminary Cash Settlement Payment Date:		The Currency Business Day immediately following the Preliminary Cash Settlement Pricing Date.

Preliminary Cash Settlement Pricing Date:		The third Scheduled Trading Day immediately prior to the scheduled Valuation Date for the Component with the earliest scheduled Valuation Date.

Preliminary Forward Cash Settlement Amount:		The sum of all the Daily Preliminary Forward Cash Settlement Amounts.

Daily Preliminary Forward Cash Settlement Amount:		105% of the Forward Cash Settlement Amount that would apply if the Valuation Date were the Preliminary Cash Settlement Pricing Date.

Settlement Price:		Notwithstanding Sections 1.23(b) and 7.3 of the Equity Definitions, the Relevant Price or Settlement Price, as the case may be, will be equal to, the Nasdaq Official Closing Price (the “NOCP”) per Share as of the Valuation Time on the Valuation Date as reported in the official price determination mechanism for the Exchange.

Additional Cash Payment:		If Physical Settlement is applicable, then in addition to the Number of Shares to be Delivered, Party B shall pay to Party A an amount in cash equal to the product of (i) the Number of Shares to be Delivered and (ii) USD [***].

Automatic Physical Settlement:		If (i) by 10:00 A.M., New York City time on the Settlement Date Party B has not otherwise effected delivery of the Number of Shares to be Delivered or delivered the Preliminary Forward Cash Settlement Amount in lieu thereof by 5:00 P.M., New York City time, on the Preliminary Cash Settlement Payment Date, and (ii) the collateral then held under the Pledge Agreement by or on behalf of Party A includes a number of Shares with


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.

Page 5 of 22


		respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified herein) are true and satisfied (or, at the absolute discretion of Party A, Shares with respect to which such Representation and Agreement are not true or satisfied) at least equal to the Number of Shares to be Delivered, then (x) Party B shall be deemed not to have elected Cash Settlement for such Component only (notwithstanding any notice by Party B to the contrary) and (y) the delivery required by Section 9.2 of the Equity Definitions shall be effected, in whole or in part, as the case may be by delivery from the Collateral Account (as defined in the Pledge Agreement) to Party A of a number of Shares equal to the Number of Shares to be Delivered for such Settlement Date. For the avoidance of doubt, the parties agree that, notwithstanding the foregoing and without limiting the generality of Section 5(a) of the Agreement, if Party B elects Cash Settlement or is deemed to have elected Cash Settlement and does not deliver the Forward Cash Settlement Amount when required, Party B shall be in breach of this Agreement and shall be liable to Party A for any losses incurred by Party A or any affiliate of Party A as a result of such breach, including without limitation market losses incurred in connection with any decline in the value of the Shares subsequent to the Valuation Date.

Representation and Agreement:		Notwithstanding any provision of the Equity Definitions to the contrary, the existence of Permitted Restrictions with respect to any Shares shall be deemed not to constitute a breach of Section 9.11 of the Equity Definitions.

Permitted Restrictions:		None

Settlement Currency:		USD

Dividends:

Obligations with Respect to Excess Cash Dividends:		If there occurs an Excess Cash Dividend, then Party B shall make a cash payment to Party A, on the date such Excess Cash Dividend is paid by the Issuer to holders of Shares, of an amount equal to the product of the aggregate Number of Shares as of the ex-dividend date for such Excess Cash Dividend and the amount of such Excess Cash Dividend, as determined by the Calculation Agent.

Excess Cash Dividend:		That portion, if any, of the per Share amount of any Ordinary Cash Dividend that, together with the amount of all previous Ordinary Cash Dividends, if any, for which the ex-dividend date occurs within the same Dividend Period, exceeds the Contractual

Page 6 of 22


		Dividend Amount for such Dividend Period, as determined by the Calculation Agent.

Ordinary Cash Dividends:		Any Relevant Dividend that is, in the determination of the Calculation Agent, an ordinary cash dividend denominated in USD.

Relevant Dividend:		Any dividend or distribution on the Shares for which the ex-dividend date occurs from but excluding the Trade Date to and including the final Valuation Date.

Contractual Dividend Amount:		For any Dividend Period, USD zero per Share (subject to adjustment by the Calculation Agent in accordance with Calculation Agent Adjustment to account for any Potential Adjustment Event and subject to adjustment by the Calculation Agent to account for any Spin-off (as defined below) or any change to the timing and/or frequency of payment of the Issuer’s regular dividend.

Dividend Period:		Each period from, but excluding, one Dividend Period End Date to, but including, the next Dividend Period End Date; provided that the first Dividend Period shall commence on, but exclude, the Trade Date, and the final Dividend Period shall end on, and include, the final Valuation Date.

Obligations with Respect to Extraordinary Dividends:		If there occurs an Extraordinary Dividend, then Party B shall make a payment or delivery, as the case may be, to Party A on the date such Extraordinary Dividend is paid or delivered by the Issuer to holders of Shares, of an amount of the same type of cash or other property so paid or delivered by the Issuer equal to the product of the aggregate Number of Shares as of the ex-dividend date for such Extraordinary Dividend and the amount of such cash or property that would be received by a holder of one Share in such Extraordinary Dividend, as determined by the Calculation Agent.

Extraordinary Dividend:		Any Relevant Dividend that is not of a type described in clause (i) or subclause (A) or (B) of clause (ii) of Section 11.2(e) of the Equity Definitions and that is not, in the determination of the Calculation Agent, an Ordinary Cash Dividend, including without limitation any Relevant Dividend that is (i) a dividend or distribution declared on the Shares at a time at which the Issuer has not previously declared or paid dividends or distributions on such Shares for the prior four quarterly periods, (ii) a payment or distribution by the Issuer to holders of Shares that the Issuer announces will be an “extraordinary” or “special” dividend or distribution, (iii) a payment by the Issuer to holders of Shares out of the Issuer’s capital and surplus or (iv) any other “special”

Page 7 of 22


		dividend or distribution on the Shares that is, by its terms or declared intent, outside the normal course of operations or normal dividend policies or practices of the Issuer.

Dividend Period End Dates:		September 16 of each year (subject to adjustment by the Calculation Agent in its sole discretion to account for any Spin-off (as defined below) or any change to the timing and/or frequency of payment of the Issuer’s regular dividend.

Excess Dividend Amount:		For the avoidance of doubt, all references to the Excess Dividend Amount shall be deleted from Section 8.4(b) and Section 9.2(a)(iii) of the Equity Definitions.

Share Adjustments:

Potential Adjustment Events:		If an event occurs that constitutes both a Potential Adjustment Event under Section 11.2(e)(ii)(C) of the Equity Definitions and a Spin-off as described below, it shall be treated hereunder as a Spin-off and not as a Potential Adjustment Event.

Method of Adjustment:		Calculation Agent Adjustment

Spin-off:		A distribution of New Shares (the “Spin-off Shares”) of a subsidiary of the Issuer (the “Spin-off Issuer”) to holders of the Shares (the “Original Shares”). Solely for purposes of this paragraph, “New Shares” means ordinary or common shares of the Spin-off Issuer that are, or that as of the ex-dividend date of such Spin-off are scheduled promptly to be, (i) publicly quoted, traded or listed on an exchange or quotation system located in the same country as the Exchange (or, where the Exchange is within the European Union, in any member state of the European Union) and (ii) not subject to any currency exchange controls, trading restrictions or other trading limitations.

Party A Spin-off Election:		Party A shall have the right to elect, upon written notice delivered to Party B at least ten Scheduled Trading Days prior to the scheduled ex-dividend date of any Spin-off, that the Basket Adjustments or the Separate Transactions Adjustments shall be applicable to such Spin-off.

Basket Adjustments:		If Party A shall have elected that the Basket Adjustments apply to any Spin-off, as of the ex-dividend date for such Spin-off, (i) “Shares” shall mean the Original Shares and the Spin-off Shares; (ii) the Transaction shall continue but as a Share Basket Forward Transaction with a Number of Baskets equal to the Number of Shares prior to such Spin-off, and each Basket shall consist of one Original Share and a number of Spin-off Shares that a holder of one Original Share would have been entitled to receive in such Spin-off (and

Page 8 of 22



		references to Shares herein shall be interpreted as references to Baskets, as the context requires); and (iii) the Calculation Agent shall make such adjustments to the exercise, settlement, payment or any other terms of the Transaction as the Calculation Agent determines appropriate to account for the economic effect on the Transaction of such Spin-off (including, without limitation, adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction), which may, but need not, be determined by reference to the adjustment(s) made in respect of such Spin-off by an options exchange to options on the Shares traded on such options exchange. As of the ex-dividend date of any subsequent Spin-off, the Calculation Agent shall make adjustments to the composition of the Basket and other terms of the Transaction in accordance with the immediately preceding sentence.

Separate Transactions Adjustments:		If Party A shall have elected that the Separate Transactions Adjustments apply to any Spin-off, as of the ex-dividend date for such Spin-off, the Transaction shall be considered two separate Transactions, each with terms identical to the original Transaction (the “Original Transaction”), except that: (i) the “Shares” for the Original Transaction (the “Original Shares Transaction”) shall be the Original Shares and the “Shares” for the other transaction (the “Spin-off Shares Transaction”) shall be the Spin-off Shares, (ii) the Number of Shares for each Component of the Original Shares Transaction shall remain unchanged from the Number of Shares for such Component of the Original Transaction, (iii) the Number of Shares for each Component of the Spin-off Shares Transaction shall equal the product of (A) the Number of Shares for such Component of the Original Transaction (as in effect immediately prior to the ex-dividend date for such Spin-off) and (B) the number of Spin-off Shares that a holder of one share of Original Shares would have owned or been entitled to receive in connection with such Spin-Off, and (iv) the Forward Floor Price and the Forward Cap Price for each of the Original Shares Transaction and the Spin-off Shares Transaction shall be adjusted by the Calculation Agent to reflect the relative market values per share and dividend practices of the Original Shares and the Spin-off Shares immediately following the ex-dividend date for such Spin-off, as determined by the Calculation Agent (including, without limitation, adjustments to account for changes in volatility, expected dividends, stock loan rate or

Page 9 of 22



		liquidity relevant to the Original Shares, the Spin-off Shares, the Original Shares Transaction or to the Spin-off Shares Transaction). Following a Spin-off to which Separate Transactions Adjustments are applicable, this Confirmation shall apply in all respects (except as provided above) to both the Original Shares Transaction and the Spin-off Shares Transaction as if each were a separate Transaction under the Agreement.

Extraordinary Events:

Consequences of Merger Events:

Share-for-Share:		Modified Calculation Agent Adjustment

Share-for-Other:		Modified Calculation Agent Adjustment

Share-for-Combined:		Component Adjustment

Tender Offer:		Applicable

Consequences of Tender Offers:

Share-for-Share:		Modified Calculation Agent Adjustment

Share-for-Other:		Modified Calculation Agent Adjustment

Share-for-Combined:		Modified Calculation Agent Adjustment

Nationalization, Insolvency or Delisting:		Cancellation and Payment; provided that, following a Spin-off in respect of which Basket Adjustments are applicable, Partial Cancellation and Payment shall be applicable.

Additional Disruption Events:

Change in Law:		Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) deleting the words “a party to such Transaction” in the fifth line thereof and replacing them with the words “Party A” and (ii) deleting the words “it” and “its” in the seventh line thereof and replacing them with the words “either party” and “such party”, respectively.

Failure to Deliver:		Not Applicable

Insolvency Filing:		Applicable

Hedging Disruption:		Applicable

Hedging Party:		Party A

Increased Cost of Hedging:		Applicable

Hedging Party:		Party A

Loss of Stock Borrow:		Applicable

Maximum Stock Loan Rate:		[***] basis points per annum

Hedging Party:		Party A


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.

Page 10 of 22


Increased Cost of Stock Borrow:		Applicable

Initial Stock Loan Rate:		[***] basis points per annum

Hedging Party:		Party A

Determining Party:		Party A

Cancellation Amount:		For the avoidance of doubt, the parties agree that, for purposes of determining any Cancellation Amount payable as a Hedging Disruption, Increased Cost of Hedging, Loss of Stock Borrow or Increased Cost of Stock Borrow, the Determining Party may take into account any amounts payable by the Hedging Party under any buy-in provisions contained in any securities loan agreements governing loans of Shares borrowed in respect of the Transaction.

Non-Reliance:		Applicable

Agreements and Acknowledgments Regarding Hedging Activities:		Applicable

Additional Acknowledgments:		Applicable

2. Conditions:

(a) Conditions to Effectiveness. As a condition to the effectiveness of this Confirmation and the Forward Sales Plan (as defined in the Addendum):

(i) Pledge Agreement. The parties hereto shall have entered into a Pledge Agreement (as hereafter amended, modified, supplemented, replaced or amended and restated, the “Pledge Agreement”). On the Commencement Date, Party B shall deliver such Shares as security for Party B’s obligations hereunder, under the Transaction Acknowledgment, the Agreement, and the Pledge Agreement in the manner specified in the Pledge Agreement and the number of Shares shall be at least equal to the aggregate Number of Shares, all as further provided in the Pledge Agreement. The Pledge Agreement shall be a Credit Support Document hereunder and under the Agreement.

(ii) Addendum. The parties hereto shall have entered into the Addendum.

(iii) Transaction Acknowledgment. The parties hereto shall have entered into the Transaction Acknowledgment.

(iv) Opinions. Party B shall have caused its counsel to have delivered to Party A, on the Commencement Date, opinions satisfactory to Party A with respect to the Transaction Acknowledgment, the Confirmation, the Supplemental Confirmation, the Addendum, and the Pledge Agreement.

(v) Issuer’s Representation Letter. Party B shall have delivered to Party A an Issuer Representation Letter, satisfactory to Party A, duly executed by an executive officer of the Issuer.

(vi) The representations and warranties of Party B contained in Section 3 below, in the Addendum, in the Transaction Acknowledgment, in the Agreement (including as may be


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.

Page 11 of 22

modified herein), and in the Pledge Agreement shall be true and correct as of the Commencement Date.

(vii) Party B shall have performed all of the covenants and obligations to be performed by it hereunder, under the Transaction Acknowledgment, under the Addendum, under the Agreement (including as may be modified herein), and under the Pledge Agreement that are required to be performed on or prior to the Commencement Date.

(b) Conditions to Party A’s Payment Obligation. The obligation of Party A to pay the Prepayment Amount on the Prepayment Date is subject to the satisfaction of the following conditions:

(i) The representations and warranties of Party B contained in Section 3 below, in the Addendum, in the Agreement (including as may be modified herein) and in the Pledge Agreement shall be true and correct as of the Prepayment Date.

3. Other Provisions:

(a) Additional Representations and Agreements. Party B represents and warrants to and for the benefit of, and agrees with, Party A as follows (as of each day during the period beginning on the Commencement Date and ending on the Prepayment Date, except with respect to clauses (viii) and (ix) below, which shall apply as of each day during the period beginning on the Commencement Date and ending on the last Valuation Date, and except with respect to clause (iii) below, which shall apply only as of the date specified in the Addendum):

(i) From the date three months prior to the Commencement Date until the Trade Date, neither Party B nor any person who would be considered to be the same “person” (as such term is used in Rule 144(a)(2) under the Securities Act) as Party B has, without the written consent of Party A, sold or loaned any Shares or hedged (through swaps, options, short sales or otherwise) any long position in the Shares. For the purposes of this paragraph, Shares shall be deemed to include securities convertible into or exchangeable or exercisable for Shares.

(ii) Party B does not know or have any reason to believe that the Issuer has not complied with the reporting requirements contained in Rule 144(c)(1) under the Securities Act.

(iii) The representations made by Party B regarding material, non-public information in the Addendum are incorporated herein by reference.

(iv) Party B is an “eligible contract participant” and this Transaction has been subject to individual negotiation by the parties and has not been executed or traded on a “trading facility” (as such terms are defined in the Commodity Exchange Act, as amended).

(v) Party B is (A) an “accredited investor” within the meaning of Rule 501(a) under the Securities Act, (B) is entering into the Transaction for its own account and not with a view to distribution and (C) understands and acknowledges that the Transaction has not and will not be registered under the Securities Act.

(vi) Party B is not, and after giving effect to the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

(vii) Party B (A) has not sold any Shares pursuant to an effective registration

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statement (under which Party B is listed as a selling securityholder) at any time during the thirty (30) Exchange Business Days prior to or following the Commencement Date, and shall not make any such sales of Shares at any time during the ten (10) Exchange Business Days prior to or following the Valuation Date and (B) has not exercised any rights under any registration rights agreement to cause a registration statement (under which Party B is, or will be, listed as a selling securityholder) to be filed with respect to any Shares at any time during the thirty (30) Exchange Business Days prior to or following Trade Date and shall not exercise any such rights, or cause any such registration statement to be filed, at any time during the ten (10) Exchange Business Days prior to or following the Valuation Date. For purposes of this paragraph only, “Valuation Date” shall include any other date of early termination or unwind of the Transaction in whole or in part.

(viii) Party B is and will be in compliance with its reporting obligations under the Exchange Act, and Party B will provide Party A with a copy of any report filed thereunder in respect of the Transaction promptly upon filing thereof.

(ix) None of the transactions contemplated herein will violate (i) any corporate policy of the Issuer or other rules or regulations of the Issuer applicable to Party B or its affiliates, including, but not limited to, the Issuer’s window period policy or (ii) an contractual restrictions applicable to Party B pursuant to any agreements to which Party B is a party, including, but not limited to the Shareholders Agreement of Party B dated as of November 25, 2009, as such may be modified or supplemented by Letters of Acknowledgement and Consent dated as of December 31, 2010 delivered by certain shareholders of Party B.

(x) Party B has, on or prior to the Commencement Date, transmitted for filing with the Securities and Exchange Commission (the “SEC”) a Form 144 with respect to the Transaction, and has filed or will file any amendments thereto necessary pursuant to Rule 144 or any related interpretations of the SEC with respect to this Transaction. Party B promptly will provide Party A with a copy of all such filings.

(xi) Party B has not solicited or arranged for the solicitation of, and will not solicit or arrange for the solicitation of, orders to buy Shares in anticipation of or in connection with any sales of Shares that Party A or an affiliate of Party A effects in establishing Party A’s initial hedge position with respect to the Transaction.

(xii) Except as provided herein, Party B has not made, will not make, and has not arranged for, any payment to any person in connection with any sales of Shares that Party A or an affiliate of Party A effects in establishing Party A’s initial hedge position with respect to the Transaction.

(xiii) The parties intend that the Transaction Acknowledgment, as supplemented by the Addendum, constitutes a “Preliminary Agreement” and the Confirmation, as supplemented by the Supplemental Confirmation, constitutes a “Final Agreement,” both as described in the letter dated December 14, 1999 submitted by Robert W. Reeder and Alan L. Beller to Michael Hyatte of the Securities and Exchange Commission staff (the “Staff”) to which the Staff responded in an interpretive letter dated December 20, 1999.

(xiv) The law of the People’s Republic of China does not apply in any respect to (i) Party B, or (ii) this Confirmation, the Supplemental Confirmation, the Agreement, the Addendum, the Pledge Agreement or the Transaction.

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(xv) Party B possesses, has read, and understands the terms and provisions of the Addendum, the Agreement and the Equity Definitions.

(aA) Additional Representations and Agreements of Party A. Party A represents and warrants to and for the benefit of, and agrees with, Party B as follows (as of the Commencement Date):

(i) Party A is an “eligible contract participant” and this Transaction has been subject to individual negotiation by the parties and has not been executed or traded on a “trading facility” (as such terms are defined in the Commodity Exchange Act, as amended).

(ii) Party A or an affiliate that is registered as a broker-dealer under the Exchange Act has introduced or will introduce into the public market as promptly as practicable consistent with market conditions following the Commencement Date a quantity of securities of the same class as the Shares equal to the Number of Shares, and neither Party A nor any such affiliate has taken any actions inconsistent with the manner-of-sale conditions described in Rule 144 (g) under the Securities Act.

(iii) Party A is (A) an “accredited investor” within the meaning of Rule 501(a) under the Securities Act, (B) is entering into the Transaction for its own account and not with a view to distribution and (C) understands and acknowledges that the Transaction has not and will not be registered under the Securities Act.

(iv) The parties intend that the Transaction Acknowledgment, as supplemented with the Addendum, constitutes a “Preliminary Agreement” and, upon execution of the Supplemental Confirmation for the Transaction, a “Final Agreement,” both as described in the letter dated December 14, 1999 submitted by Robert W. Reeder and Alan L. Beller to Michael Hyatte of the Securities and Exchange Commission staff (the “Staff”) to which the Staff responded in an interpretive letter dated December 20, 1999.

(v) Party A is a “qualified purchaser” as defined in Section 2(a)(51) of the Investment Company Act of 1940, as amended.

(b) Additional Termination Events. The following shall be Additional Termination Events with respect to which Party B is the sole Affected Party and all Transactions shall be Affected Transactions:

(i) Party B shall be indicted for, or shall be convicted of, or plead guilty or plead nolo contendere to (A) any felony or (B) any other crime relating to securities transactions or investment management or involving fraud or breach of trust;

(ii) Party B shall have become subject to any formal regulatory or administrative investigation, proceeding, action or sanction of or by any Governmental Authority (as defined below), which, in any such case, is reasonably likely to have a material adverse effect on Party B. For purposes of this subparagraph, the term “Governmental Authority” shall mean any nation or government, any state or other political subdivision thereof or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

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(i) a Collateral Event of Default, as defined in the Pledge Agreement, shall have occurred; or

(ii) (A) if Party B is a business trust entity or a trustee of a common law trust acting in such capacity hereunder, the trust agreement or declaration of trust with respect to Party B is terminated or revoked or amended or modified in any manner that is, in the sole discretion of Party A, adverse to Party A’s rights under this Confirmation; (B) if Party B is a partnership, (x) any general partner breaches any provision of the partnership agreement; or (y) the partnership is dissolved, terminated or liquidated; (C) if Party B is a limited liability company, (x) any manager or member breaches any material provision of the limited liability company agreement or (y) the limited liability company is dissolved, terminated or liquidated; (D) if Party B is a company, (x) any officer or director of Party B breaches any material provision of the Shareholders Agreement among the shareholders of Party B or the memorandum and articles of association or any other equivalent organizational documents of Party B; or (y) Party B is dissolved, terminated or liquidated; or

(iii) any legal proceeding shall have been instituted or any other event shall have occurred or condition shall exist that in the judgment of Party A could have a material adverse effect on the financial condition of Party B or on Party B’s ability to perform its obligations hereunder (as supplemented by the Supplemental Confirmation) or under the Pledge Agreement, the Transaction Acknowledgment, or the Addendum, or that calls into question the validity or binding effect of any agreement of Party B hereunder (as supplemented by the Supplemental Confirmation) or under the Transaction Acknowledgment, the Pledge Agreement, the Confirmation (as supplemented by the Supplemental Confirmation), or the Addendum; or

(iv) To the extent the law of the People’s Republic of China becomes applicable to Party B, Party B fails to comply in all material respects with the requirements of all applicable law of the People’s Republic of China if the failure to so comply would materially impair Party B’s ability to perform its obligations under this Confirmation (as supplemented by the Supplemental Confirmation), the Transaction Acknowledgment, the Agreement, the Addendum, the Pledge Agreement, or any other Credit Support Document to which Party B is a party; or

(v) Charles Guowei Chao ceases to be, directly, the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of a majority of the outstanding ordinary shares of Party B or otherwise ceases to have the sole power to direct or cause the direction of the management or policies of Party B, or (b) a “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934) other than Charles Guowei Chao becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of more than fifteen percent (15%) of the outstanding ordinary shares of Party B.

(d) Amendments to Equity Definitions. The following amendments shall be made to the Equity Definitions:

(i) The first paragraph of Section 11.2(c) of the Equity Definitions is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the method of adjustment in the Confirmation of a Share Transaction, then following any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the theoretical value of the Shares or options on the Shares and, if so, may in its sole discretion make appropriate and commercially reasonable adjustments to any one or more of the aggregate Number of Shares, the Number of Shares for any Component, the Forward Floor Price, the Forward Cap Price, any Relevant Price, any Settlement Price, any Number of Shares to be

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Delivered, any Forward Cash Settlement Amount and any other variable relevant to the exercise, settlement or payment terms of such Transaction”, and the sentence immediately preceding Section 11.2(c)(ii) is hereby amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)”.

(ii) Section 11.2(e)(iii) of the Equity Definitions is hereby deleted in its entirety.

(iii) Section 11.2(e)(vii) of the Equity Definitions is hereby deleted and replaced with the following, “any other event that may have a material effect on the theoretical value of the relevant Shares or options on the Shares”. For the avoidance of doubt, when making a determination whether a Potential Adjustment Event has occurred pursuant to this Section 11.2(e)(vii), the Calculation Agent shall make such determination in good faith and in a commercially reasonable manner.

(iv) Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (A) inserting into the first line thereof the reference “(1)” after the word “means”, (B) deleting the period at the end of subsection (ii) thereof and inserting the following words in its place: “or (2) at Party A’s option, the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the Agreement with respect to that Issuer.”

(e) Amendments and Elections with respect to the Agreement. The following amendments and elections shall be made to, and with respect to, the Agreement:

(i) For purposes of Section 3(c) of the Agreement,

(A) “Specified Entity” means, in relation to Party A, none, and in relation to Party B: none; and

(B) Section 3(a)(v) of the Agreement is hereby amended by inserting the words “against Party B” between the word “enforceable” and the words “in accordance with their respective terms” therein.

(ii) The agreement in Section 4(a)(iii) of the Agreement is amended by inserting “promptly upon the earlier of (1)” in lieu of the word “upon” at the beginning thereof and inserting “or (2) such party learning that the form or document is required” before the word “any” in the first line thereof.

(iii) The “Cross Default” provisions of Section 5(a)(vi) of the Agreement will not apply to Party A and will apply to Party B, and, for such purpose “Specified Indebtedness” will mean any obligation in respect of the payment of borrowed money (whether present or future, contingent or otherwise, as principal or surety or otherwise), except that such term shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business, and the “Threshold Amount” in relation to Party B shall be zero.

(iv) The definition of “Close-out Amount” in Section 14 of the Agreement is hereby amended by adding the following sentence at the end thereof: “The Close-out Amount or portion thereof relating to any Option Transaction, Forward Transaction or Equity Swap Transaction (each as defined in the Equity Definitions) shall be determined

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as if the phrases “quotations pursuant to clause (i) above or” and “quotations or” were deleted from the first sentence of the fifth full paragraph of this definition.”.

(v) Annexes 1 through 18 and Section 6 of the ISDA 2002 Master Agreement Protocol as published by ISDA on July 15, 2003 are incorporated into and apply to the Agreement. References in those definitions and provisions to any ISDA Master Agreement will be deemed to be references to the Agreement.

(f) Indemnity. In the event that Party A or any of its affiliates becomes involved in any capacity in any action, proceeding or investigation brought by or against any person in connection with any matter referred to in the Transaction Acknowledgment, Agreement, this Confirmation, the Supplemental Confirmation, the Addendum, or the Pledge Agreement, Party B shall reimburse Party A or such affiliate for its reasonable legal and other out-of-pocket expenses (including the cost of any investigation and preparation) incurred in connection therewith within 30 days of receipt of notice of such expenses, and shall indemnify and hold Party A or such affiliate harmless on an after-tax basis against any losses, claims, damages or liabilities to which Party A or such affiliate may become subject in connection with any such action, proceeding or investigation. Notwithstanding the foregoing, such obligation to reimburse expenses, indemnify and hold harmless shall not apply to any action, proceeding, or investigation which is finally determined as having resulted from Party A’s gross negligence, willful misconduct, or any material breach of (or the inaccuracy in any material respect of any representation or warranty made in) the Transaction Acknowledgment, the Agreement, this Confirmation, the Supplemental Confirmation, the Addendum, the Pledge Agreement or any Related Agreement. The reimbursement and indemnity obligations of Party B under this Section shall be in addition to any liability that Party B may otherwise have, shall extend upon the same terms and conditions to the partners, directors, officers, agents, employees and controlling persons (if any), as the case may be, of Party A and its affiliates and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of Party B, Party A, any such affiliate and any such person. Party B also agrees that neither Party A nor any of such affiliates, partners, directors, officers, agents, employees or controlling persons shall have any liability to Party B for or in connection with any matter referred to in the Transaction Acknowledgment, the Agreement, this Confirmation, the Supplemental Confirmation, the Addendum, or the Pledge Agreement except to the extent that any losses, claims, damages, liabilities or expenses incurred by Party B result from the gross negligence or bad faith of Party A or a breach by Party A of any of its covenants or obligations hereunder. The foregoing provisions shall survive any termination or completion of the Transaction.

(g) No Condition of Confidentiality. Effective from the date of commencement of discussions concerning the Transaction, Party B and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Party B relating to such tax treatment and tax structure.

(h) Termination and Liquidation. The parties hereto agree and acknowledge that Party A is a “financial institution” within the meaning of Section 101(22) of Title 11 of the United States Code (the “Bankruptcy Code”). The parties hereto further agree and acknowledge that this Agreement is a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, and Party A is entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 546(e) and 555 of the Bankruptcy Code.

(i) Certain Authorized Transfers. Subject to the prior consent of Party B (which consent shall not be unreasonably withheld or delayed), Party A may transfer or assign its rights and obligations hereunder, under the Supplemental Confirmation, the Addendum, the Agreement, and the Pledge Agreement, in whole or in part, to (i) any of its affiliates, (ii) any entities sponsored or organized by, or on behalf of or for the benefit of, Party A or (iii) any third party.

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(j) Designation by Party A. Party A (the “Designator”) may designate any of its affiliates (the “Designee”) to deliver or take delivery, as the case may be, and otherwise perform its obligations to deliver or take delivery of, as the case may be, any Shares in respect of this Transaction, and the Designee may assume such obligations and the obligations of Party A under this Confirmation with respect to such Shares. Such designation shall not relieve the Designator of any of its obligations hereunder. Notwithstanding the previous sentence, if the Designee shall have performed the obligations of the Designator hereunder, then the Designator shall be discharged of its obligations to Party B to the extent of such performance.

(k) Payments on Early Termination. Upon the occurrence or effective designation of an Early Termination Date occurring as a result of an Event of Default or a Termination Event or the occurrence of an Extraordinary Event that results in the cancellation or termination of the Transaction pursuant to Section 12.2, 12.3, 12.6 or 12.9 of the Equity Definitions, if Party B would owe any amounts to Party A pursuant to Section 6(e) of the Agreement (determined as if the Transaction were the only Transaction under the Agreement) or any Cancellation Amount pursuant to Section 12.2, 12.3, 12.6 or 12.9 of the Equity Definitions, then, except to the extent that Party A proceeds to realize pursuant to clause (ii) of paragraph 7(a) of the Pledge Agreement upon collateral pledged under the Pledge Agreement and to apply the proceeds of such realization as provided in the second clause of paragraph 7(d) thereof:

(i) on such Early Termination Date or the date the Cancellation Amount is due in respect of such Extraordinary Event, in lieu of any payment or delivery required by Section 6(d)(ii) of the Agreement or Section 12.7 of the Equity Definitions, as the case may be, Party B shall deliver to Party A a number of Shares equal to the quotient obtained by dividing (A) the amount that would be payable pursuant to Section 6(e) of the Agreement or Section 12.8 of the Equity Definitions, as the case may be, were it not for this sentence, by (B) the market value of the Shares as of the Early Termination Date or the date as of which the Cancellation Amount is determined, as the case may be, as determined by the Calculation Agent; and

(ii) for purposes of determining any Close-out Amount under Section 6(e) of the Agreement in respect of any other Transactions under the Agreement, the Transaction shall be deemed not to be a Transaction under the Agreement; provided that, for the avoidance of doubt, if Party B fails to deliver Shares pursuant to clause (i) above at the time required, then the Transaction (including such delivery obligation) shall be included for the purpose of determining Party A’s Close-out Amount for all Transactions (including the Transaction) under the Agreement.

(l) Netting and Set-off.

(i) If on any date cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or the Pledge Agreement by Party A to Party B and by Party B to Party A and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each such party’s obligation to make such payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or deliverable by the other such party, replaced by an obligation of the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

(ii) In addition to and without limiting any rights of set-off that a party hereto may have as a matter of law, pursuant to contract or otherwise (including, without limitation, in Section 6(f) of the Agreement), upon the occurrence of a Default Event (as defined in the Pledge Agreement), Party A shall have the right to terminate, liquidate and

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otherwise close out the Transaction, all other Transactions contemplated by the Transaction Acknowledgment, the Agreement, each Confirmation, the Supplemental Confirmation, the Addendum, the Pledge Agreement and any other Credit Support Document pursuant to the terms hereof and thereof, and to set off any obligation that Party A or any affiliate of Party A may have to Party B hereunder or thereunder, including without limitation any obligation to make any release, delivery or payment to Party B pursuant to the Transaction Acknowledgment, the Supplemental Confirmation, the Addendum, the Agreement, the Pledge Agreement, any other Credit Support Document or any other such agreement, against any right Party A or any of its affiliates may have against Party B, including without limitation any right to receive a payment or delivery pursuant to any provision of the Transaction Acknowledgment, the Supplemental Confirmation, the Addendum, the Agreement, the Pledge Agreement, any other Credit Support Document and any such other agreement or hereunder. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set off in kind. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the Calculation Agent and the result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by the Calculation Agent) equal to that of the net obligation. In determining the value of any obligation to release or deliver Shares or any right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of the Shares at such time, as determined by the Calculation Agent. If an obligation or right is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in which case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.

(m) Provisions relating to MLPF&S:

(i) MLPF&S is registered as a broker-dealer with the U.S. Securities and Exchange Commission and the National Association of Securities Dealers. MLPF&S is acting as agent hereunder for both Party A and Party B pursuant to such party’s instructions. Party B acknowledges that it understands that MLPF&S is an affiliate of Party A.

(ii) MLPF&S does not act as principal with respect to the Transaction and shall have no responsibility or liability to Party A or Party B whatsoever for or arising from (A) any failure by either Party A or Party B to perform any of its respective obligations under or in connection with the Transaction, (B) the collection or enforcement of any such obligations, or (C) the exercise of any of the rights and remedies of either Party A or Party B under or in connection with the Transaction. Each of Party A and Party B agrees to proceed solely against the other to collect or enforce any such obligations, and the Agent shall have no liability in respect of such obligations pursuant to the Transaction.

(iii) Where MLPF&S acts as agent for Party A and Party B, upon written request, MLPF&S will furnish to Party A and Party B the date and time of the execution of the Transaction with respect to any Shares and a description of the source and amount of any remuneration received or to be received by MLPF&S or any other broker-dealer in connection with such portion of the Transaction.

(iv) Party B understands, acknowledges and agrees that: (A) in all cases in which MLPF&S acts in connection with the Transaction, it is a corporate affiliate of Party A, Party B’s counterparty in the Transaction; (B) any dual capacity by MLPF&S, as

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well as the MLPF&S’s affiliate relationship to Party A, may create a conflict of interest between Party B’s interests and the interests and duties of MLPF&S and its affiliates and (C) MLPF&S, in a separate capacity for Party A, may hold collateral posted by or on behalf of Party B in connection with the Transaction in a collateral account for Party A, in which case MLPF&S shall be entitled to comply with the directions of Party A with respect to such collateral held in a collateral account with MLPF&S without further consent from Party B. With respect to the matters described in the previous sentence, Party B hereby waives any conflict of interest that MLPF&S or Party A may have concerning all matters directly or indirectly arising out of the Transaction and the administration and enforcement thereof, and, without limiting the generality of Section 3(f) above, releases, indemnifies and agrees to hold harmless MLPF&S and Party A and each of their respective officers, employees, agents, directors, affiliates, successors and assigns, from and against any claim, action, liability, loss or expense arising from any allegation of a conflict of interest relating to the Transaction.

(n) Consent to Disclosure within Party A, BAS and their Affiliates. Party B consents to Party A and BAS effecting such disclosure as they may deem appropriate to enable them to transfer Party B’s records and information to process and execute Party B’s instructions with respect to the Transaction or pursuant to the Agreement, or in pursuance of their or Party B’s commercial interests, to each other or any of their affiliates. For the avoidance of doubt, Party B’s consent to disclosure includes the right on the part of Party A and BAS to allow access to any intended recipient of Party B’s information, to the records of Party A or BAS by any means.

(o) USA PATRIOT Act Required Notice. Party A and BAS hereby notify Party B that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), they are required to obtain, verify and record information that identifies Party B, which information includes the name and address of Party B and information that will allow Party A and BAS to identify Party B in accordance with the Act.

(p) GOVERNING LAW. THIS CONFIRMATION AND THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CHOICE OF LAW RULES THEREOF EXCEPT FOR SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS CONFIRMATION OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(q) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONFIRMATION OR ANY TRANSACTION CONTEMPLATED HEREBY.

Notice and Account Details.

(a) Telephone and/or Facsimile Numbers and Contact Details for Notices:

Address for notices or communications to Party A:

Bank of America, N.A.
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as agent or arranger (as provided herein)
Bank of America Tower at One Bryant Park
New York, NY 10036
Attention: Legal Department

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Telephone: 646-855-7127
Facsimile: 704-208-2869

Address for notices or communications to Party B:

New-Wave Investment Holding Company
20/F Beijing Ideal International Plaza
No. 58 Northwest 4th Ring Road
Haidian District, Beijing, 100080
People’s Republic of China
Attention: Chief Executive Officer

With a copy to:

Shearman & Sterling LLP
12th Floor East Tower, Twin Towers
B-12 Jianguomenwai Dajie
Beijing, 100022
People’s Republic of China
Attention: Lee Edwards
Fax: (8610) 6563-6000

(b) Account Details:

Account Details of Party A:


Pay to:		Bank of America, N.A.
		New York, NY
		SWIFT: BOFAUS3N
		Bank Routing: 026-009-593
		Account Name: Bank of America
		Account No. : 0012333-34172

Account Details of Party B:

Offices.

Party A: Charlotte
Party B: Not Applicable

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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us.


Yours sincerely, BANK OF AMERICA, N.A.
By:	/s/ Brian D. Gray
	Name:	Brian D. Gray
	Title:	Authorized Signatory


Accepted and Confirmed as of the Trade Date: NEW-WAVE INVESTMENT HOLDING COMPANY LIMITED
By:	/s/ Charles Guowei Chao
	Name:	Charles Guowei Chao
	Title:	Chief Executive Officer

Signature Page to Confirmation

EX-99.K 4 f57734exv99wk.htm EX-99.K exv99wk

Exhibit K


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.

Forward Sales Plan (Rule 10b5-1)
Addendum

December 31, 2010

This letter agreement serves as an addendum (this “Addendum”) to the Forward Sales Documents (as described below), including the Transaction Acknowledgement and Preliminary Agreement dated December 31, 2010 (the “Transaction Acknowledgment”) and the Confirmation dated December 31, 2010 (the “Confirmation”), each between Bank of America, N.A. (“Party A”) and New-Wave Investment Holding Company Limited (“Party B”). This Addendum sets forth certain of the terms and conditions of the STARS variable share prepaid forward transaction (the “Transaction”) that Party B has agreed to enter into with Party A. This Addendum is made a part of, shall supplement, and is subject to the Transaction Acknowledgment, the Confirmation, the Supplemental Confirmation (as defined below), and the Agreement (as referred to in the Confirmation) (collectively, the “Forward Sales Documents”). Unless otherwise specified herein, capitalized terms used but not defined herein shall have the meanings set forth in the Confirmation.

Establishment of Forward Sales Plan.

The Forward Sales Documents are being entered into between Party A and Party B for the purpose of establishing a sales “contract, instruction, or plan” for the Transaction (the “Forward Sales Plan”) that complies with the requirements of Rule 10b5-1(c)(1) under the Exchange Act. In furtherance thereof, Party A has established an execution plan under the Transaction Acknowledgment, as supplemented hereby, for its initial hedge of the price and market risk under the Transaction (the “Initial Hedge”). Party A and Party B agree that the Forward Sales Documents shall constitute a binding contract or instruction satisfying the requirements of Rule 10b5-1(c) under the Exchange Act.

Execution Plan.

The following execution plan of the Forward Sales Plan supplements and forms part of, and is subject to, the additional provisions of the Forward Sale Plan under other Forward Sales Documents. At any time and from time to time during the Plan Effective Period (as defined in the Transaction Acknowledgment), Party A (or an affiliate of Party A) shall establish the Initial Hedge, with respect to a number of Shares equal to or less than the Maximum Number of Shares (as defined in the Transaction Acknowledgement), in accordance with the Transaction Acknowledgement and the following conditions:

(a) Party A shall not sell any Shares in respect of the Transaction at a price below USD [***] per Share, as adjusted by the Calculation Agent in a manner consistent with Calculation Agent Adjustment (the “Minimum Sale Price”).

(b) If the price per Share on the Exchange is less than the Minimum Sale Price, Party A shall suspend sales in connection with establishing the Initial Hedge for the Transaction until such price is equal to or greater than the Minimum Sale Price.

(c) If the closing price per Share on the Exchange is less than USD [***] for three consecutive Trading Days, then the Trading Day immediately following such third Trading Day shall be the Trade Date for the Transaction and Party A shall determine the Supplemental Terms (as defined below) for the Transaction based on the Initial Hedge for the Transaction prior to and including the Trade Date for the Transaction. For the avoidance of doubt, the provisions of this paragraph shall not apply to the Transaction if no Shares are sold in respect of the Transaction.



Page 1 of 9

Except as provided in the Forward Sales Plan, how, when or whether Party A or any of its affiliates effects any sale of Shares in the Initial Hedge, and the price at which Party A or such affiliate effects any such sale, shall be in Party A’s sole discretion. To the extent Party A executes any sale in compliance with this Forward Sales Plan, Party B agrees that Party A shall have no responsibility to Party B of any kind with respect to the price at which Party A effects such sale.

The Initial Hedge shall be established without any consultation with Party B, and Party A is authorized to commence the Initial Hedge on the Commencement Date, to the extent that all of Party B’s conditions precedent to the Initial Hedge have been satisfied, as determined by Party A. Without limiting the generality of the foregoing, from the date of the Confirmation to the Prepayment Date, Party B agrees that Party B and its affiliates, employees, agents and representatives shall not communicate with Party A or any of Party A’s affiliates, employees, agents or representatives in any way regarding the Issuer, the Shares, the Transaction or Party A’s hedging activities relating thereto, other than as set forth in clause (a)(iii) of the section below entitled “Additional Covenants of Party B”. The parties further agree that subsequent to the Commencement Date, Party B may not exercise any influence over how, when or whether Party A effects sales or purchases in connection with Party A’s Initial Hedge.

Supplemental Confirmation, Reliance, and Binding Agreement.

With respect to the General Terms of the Confirmation, upon the completion of the Initial Hedge, Party A shall determine in accordance with the Transaction Acknowledgement: (i) the Trade Date; (ii) the Number of Shares and each Component thereof; (iii) the Forward Floor Price; (iv) the Forward Cap Price; (v) the Valuation Date for each Component thereof; and (vi) the Prepayment Amount (collectively, the “Supplemental Terms”), in each case based on the Initial Hedge executed in accordance with the Forward Sales Plan. Party A shall deliver the Supplemental Confirmation (the “Supplemental Confirmation”) to Party B within three Business Days following the Trade Date. The Supplemental Confirmation shall be substantially in the form of Annex A hereto.

Party B acknowledges that the Initial Hedge shall be executed in reliance on each of the Forward Sales Documents. Furthermore, as a condition to the execution of the Initial Hedge by Party A, Party B hereby accepts and agrees to be bound by the contractual terms and conditions as set forth in the Supplemental Confirmation. Upon receipt of the Supplemental Confirmation, Party B shall promptly execute and return the Supplemental Confirmation to Party A; provided that Party B’s failure to so execute and return the Supplemental Confirmation shall not affect the binding nature of the Supplemental Confirmation, and the terms set forth in the Supplemental Confirmation shall be binding on Party B to the same extent, and with the same force and effect, as if Party B had executed a written version of the Supplemental Confirmation. At least one (1) Business Day prior to the delivery of the Supplemental Confirmation, Party A shall transmit via email to Party B a complete list of the proposed terms to be included in the Supplemental Confirmation. To the extent that Party B identifies any errors in the proposed terms of the Supplemental Confirmation prior to the delivery of the Supplemental Confirmation, then, at the request of Party B (such request shall be directed to [***] at [***], Party A shall promptly correct such errors (to the extent such errors are verified by Party A) prior to delivering the Supplemental Confirmation to Party B.

Each of Party B and Party A agrees and acknowledges that (i) the Transaction will be entered into in reliance on the fact that the Confirmation and the Supplemental Confirmation form a single agreement between Party B and Party A, and Party A would not otherwise enter into the Transaction, (ii) the Confirmation, as supplemented by the Supplemental Confirmation, is a “qualified financial contract”, as such term is defined in Section 5-701(b)(2) of the General Obligations Law of New York (the “General Obligations Law”); (iii) the Supplemental Confirmation, regardless of whether the Supplemental Confirmation is transmitted electronically or otherwise, constitutes a “confirmation in writing sufficient to indicate that a contract has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of the General Obligations Law; and (iv) the Confirmation constitutes a prior “written contract”, as set forth in Section 5-701(b)(1)(b) of the General Obligations Law, and each party hereto intends and agrees to be bound by the Confirmation, as supplemented by the Supplemental Confirmation.

Party B and Party A further agree and acknowledge that the Forward Sales Documents, as supplemented by the Supplemental Confirmation, constitute a contract “for the sale or purchase of a security”, as set forth in Section 8-113 of the Uniform Commercial Code of New York.


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.



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Relationship of Forward Sales Documents.

In case of any inconsistency between the provisions of the Addendum and any of the other Forward Sales Documents, this Addendum shall prevail for the purpose of the Transaction. In case of any inconsistency between the provisions of the Transaction Acknowledgment and any other any of the other Forward Sales Documents, the other Forward Sales Documents shall prevail for the purpose of the Transaction. The Transaction Acknowledgment shall supplement, form a part of, and be subject to, the Agreement, and, in the manner set forth in the Confirmation, this Addendum, the Confirmation, and Supplemental Confirmation, shall supplement, form a part of, and be subject to, the Agreement.

Notwithstanding any provision in any Forward Sales Document, on and after the Prepayment Date, the Confirmation, the Supplemental Confirmation, the Agreement, and the Pledge Agreement shall supersede the Transaction Acknowledgment and any Rule 10b-10 confirmation referred to in the Transaction Acknowledgment in their entirety. For the avoidance of doubt, none of the Confirmation, the Supplemental Confirmation, the Agreement or the Pledge Agreement shall supersede this Addendum, or any other document or agreement between the parties (other than the Transaction Acknowledgment), including without limitation any documents and/or client questionnaires signed by Party B in connection with opening a new account or updating an existing account at Party A, MLPF&S or any of their affiliates, or any existing confirmation or pledge agreement relating to separate transactions.

Additional Representation by Party B.

(a) Party B represents and warrants to and for the benefit of Party A (and its affiliates) the following (as of each day from the date hereof until the Prepayment Date):

(i) Neither Party B nor its affiliates or any other person acting on its behalf has any influence over how, when or whether to effect sales of the Shares pursuant to the Forward Sales Plan.

(ii) Party B has not entered into or altered any hedging transaction(s) or position relating to the Shares corresponding to or offsetting the Transaction.

(b) As of the date hereof, Party B is not on the date hereof in possession of material, non-public information concerning the business, operations or prospects of the Issuer. “Material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Issuer. Party B is entering into the Forward Sales Documents and the Transaction hereunder in good faith and not as a part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws. This representation shall not be required to be re-made in connection with Section 2(b)(i) of the Confirmation.

(c) Party B is acting for its own account, and it has made its own independent decision to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary. Party B is not relying on any communication (written or oral) of Party A or any of its affiliates with respect to the legal, accounting, tax or other implications of the Forward Sales Documents; it being understood that information and explanations related to the terms and conditions of the Forward Sales Documents shall not be considered investment advice or a recommendation to enter into the Forward Sales Documents. Party B further acknowledges and confirms that it has taken independent tax advice with respect to the Transaction.

Additional Covenants of Party B.

(a) Party B agrees with Party A as follows (as of each day from the date hereof until the Prepayment Date):

(i) Party B shall not enter into or alter any corresponding or hedging transaction or position with respect to any securities of the same class as those covered by this Forward Sales Plan and shall not alter or deviate (whether by changing the amount, price or timing of the sale) from the terms of this Forward Sales Plan, except as contemplated in the “Waivers and Amendments” section below.



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(ii) Subject to clause (iii) below, Party B shall not, directly or indirectly, communicate any information relating to the Shares or the Issuer to any employee of Party A or its affiliates who is involved, directly or indirectly, in executing this Forward Sales Plan at any time while this Forward Sales Plan is in effect.

(iii) Party B agrees to notify Party A as soon as practicable if at any time during the Plan Effective Period Party B becomes aware of any legal, contractual or regulatory restrictions that is applicable to Party B or Party B’s affiliates that would prohibit sales, pledges or transfers of Shares by Party B (other than any such restriction relating to Party B’s possession or alleged possession of material nonpublic information relating to the Issuer or its securities). Such notice shall be directed to [***] at [***] and shall indicate the anticipated duration of the restriction, but shall not include any other information about the nature of the restrictions or its applicability to Party B. Furthermore, Party B may notify Party A after the Trade Date to correct errors in the email summary of the proposed Supplemental Terms to the extent permitted under the second paragraph of the section titled “Supplemental Confirmation, Reliance, and Binding Agreement”. In any event, Party B shall not communicate any material nonpublic information relating to the Issuer or its securities to Party A or any of Party A’s affiliates.

(iv) Party B shall not have, shall not exercise, and shall cause its affiliates or any other person acting on its behalf not to exercise, any influence over how, when or whether to effect sales of the Shares pursuant to the Forward Sales Plan.

(b) Party B further agrees that the Form 144 filing required under Section 3(a)(x) of the Confirmation shall include all information and disclosures reasonably determined by Party B to be required or necessary (including any requirements set forth in the applicable Securities and Exchange Commission’s Staff Interpretations) regarding the fact that any sales contemplated by the Transaction is being made pursuant to a previously adopted plan that is intended to comply with Rule 10b5-1(c) of the Exchange Act.

Waivers and Amendments.

Notwithstanding anything to the contrary in any of the Forward Sales Documents, any amendment or waiver of any provision of the Forward Sales Plan must be effected in accordance with the requirements for the amendment of a “plan” as defined in Rule 10b5-1(c) under the Exchange Act. Any such amendment or waiver shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act or other applicable securities laws.

Miscellaneous Provisions.

GOVERNING LAW. THIS ADDENDUM SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CHOICE OF LAW RULES THEREOF EXCEPT FOR SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

The headings and captions in the Addendum may not be construed in interpreting provisions, and this Addendum may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document.

Party A and Party B hereby ratify and confirm (i) all provisions and terms of the Forward Sales Documents as supplemented and modified by this Addendum, and (ii) that all the liens granted, conveyed, or assigned to Party A under the Forward Sales Documents are not released, reduced, or otherwise adversely affected by this Addendum and continue to secure full payment and performance of the obligations of Party B under the Forward Sales Documents, as supplemented and modified hereby. For the avoidance of doubt, Party A and Party B agree that the representations and covenants set forth herein are in addition to, and do not limit or impair, the representations and covenants set forth in the Forward Sales Documents.

Please indicate your understanding of and agreement with this Addendum by signing below, and returning this Addendum to Party A by fax at 704-208-2869 and by returning originals to Party A at:

Bank of America, N.A.
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as agent or arranger (as provided herein)
Bank of America Tower at One Bryant Park


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.



Page 4

New York, NY 10036
Attention: Legal Department

[Signature page follows.]



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Agreed to and accepted on the date first written by:

NEW-WAVE INVESTMENT HOLDING COMPANY LIMITED

/s/ Charles Guowei Chao

Charles Guowei Chao
Chief Executive Officer

BANK OF AMERICA, N.A.

/s/ Brian D. Gray

Brian D. Gray
Authorized Signatory

ANNEX A

Form of Supplemental Confirmation

SUPPLEMENTAL CONFIRMATION

Date: , 2011

New-Wave Investment Holding Company Limited (“Party B”)
Attn: Charles Guowei Chao, Chief Executive Officer
20/F Ideal International Plaza
No. 58 Northwest 4^th Ring Road
Haidian District, Beijing, People’s Republic of China
Facsimile Number: [ ]

From: Bank of America, N.A. (“Party A”)
Facsimile Number: 212-230-8325

The purpose of this communication (this “Supplemental Confirmation”) is to set forth the terms and conditions of the Transaction specified below between you and us. This Supplemental Confirmation supplements, forms a part of, and is subject to the letter agreement dated as of December 31, 2010 (the “Confirmation”) between you and us.

1. The definitions and provisions contained in the Equity Definitions, the 2000 Definitions and in the Confirmation are incorporated into this Supplemental Confirmation. In the event of any inconsistency between any of those definitions and provisions and this Supplemental Confirmation, this Supplemental Confirmation will govern.

2. All provisions contained in the Agreement (as modified and as defined in the Confirmation) shall govern this Supplemental Confirmation except as expressly modified below.

3. The parties intend that the Confirmation, as supplemented by this Supplemental Confirmation, constitutes a “Final Agreement” as described in the letter dated December 14, 1999 submitted by Robert W. Reeder and Alan. L. Beller to Michael Hyatte of the staff of the Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretive letter dated December 20, 1999.

4. The terms of the Transaction to which this Supplemental Confirmation relates are as follows:


Reference Number: NY -	____________

Trade Date:	____________

Number of Shares:	____________

	Component [***]	Number of Shares

Forward Floor Price:	USD ____________

Forward Cap Price:	USD ____________

Valuation Date:


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.



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	Component: [***]	Valuation Date:

Prepayment Amount:	USD ____________

Dividend Period End Dates:	____________

Initial Stock Loan Rate:	____________

[Signature page follows.]


***		Certain portions of this Exhibit have been omitted based upon a request for confidential treatment. The omitted portions have been filed separately with the SEC.



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Yours sincerely, BANK OF AMERICA, N.A.
By:
	Name:	Brian D. Gray
	Title:	Authorized Signatory


[Confirmed as of the date first above written:] [or] [Receipt confirmed:] NEW-WAVE INVESTMENT HOLDING COMPANY LIMITED
By:
	Name:	Charles Guowei Chao
	Title:	Chief Executive Officer



Page 4

EX-99.L 5 f57734exv99wl.htm EX-99.L exv99wl

Exhibit L




PLEDGE AGREEMENT
SPECIALIZED TERM APPRECIATION RETENTION SALE (STARS)
		EQUITY FINANCIAL PRODUCTS GROUP

THIS AGREEMENT is made as of the date stated on the last page hereof between the counterparty named on the last page hereof (“Pledgor”), BANK OF AMERICA, N.A. (in its capacity as counterparty and secured party, “Secured Party”) and Merrill Lynch, Pierce, Fenner & Smith Incorporated (in its capacity as custodian, the “Custodian”).

WHEREAS, pursuant to (i) the Transaction Acknowledgment (as amended from time to time the “Transaction Acknowledgment”), (ii) the Forward Sales Plan Addendum (as amended from time to time, the “Addendum”), and (iii) the Specialized Term Appreciation Retention Sale Transaction Confirmation (as supplemented by the Supplemental Confirmation and as amended from time to time, the “Confirmation”), each dated as of the date hereof between Pledgor and Secured Party (all of the foregoing documents and the Agreement (as defined in the Confirmation) collectively, the “Transaction Agreements”), Pledgor has agreed to enter into a Rule 10b5-1 sales plan for the Sale of certain Shares of the Issuer, both as defined in the Confirmation, or cash in lieu thereof to Secured Party, subject to the terms and conditions of the Transaction Agreements;

WHEREAS, it is a condition to the effectiveness of the Transaction, including the Initial Hedge (as defined in the Addendum) that Pledgor and Secured Party enter into this Agreement and that Pledgor grant the pledge provided for herein;

NOW, THEREFORE, in consideration of their mutual covenants contained herein and to secure the performance by Pledgor of its obligations under the Transaction Agreements and the observance and performance of the covenants and agreements contained herein and in the Transaction Agreements, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:

Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Confirmation. As used herein, the following words and phrases shall have the following meanings:

“Additions and Substitutions” has the meaning provided in Section 2(a).

“Authorized Officer” of Pledgor means, if Pledgor is not a natural person, any officer, trustee, general partner, manager or similar Person (or any officer thereof) as to whom Pledgor shall have delivered notice to Secured Party that such officer, trustee, general partner, manager or similar Person (or officer thereof) is authorized to act hereunder on behalf of Pledgor.

“Collateral” has the meaning provided in Section 2(a).

“Collateral Account” means Account No. 7CQ10W15 maintained by Secured Party with the Custodian in the name of “BANA New-Wave Investment Holding Company Limited”, including any substitute, replacement, successor, or renumbered accounts.

“Collateral Event of Default” means, at any time, the occurrence of either of the following: (i) failure of the Collateral to include, as Eligible Collateral, at least the Maximum Deliverable Number of Shares, (ii) failure at any time of the Security Interests to constitute valid and perfected security interests in all of the Collateral, subject to no prior or equal Lien, (iii) failure at any time of Secured Party to have Control with respect to any Collateral consisting of securities or security entitlements (each as defined in Section 8-102 of the UCC), other than Control by Pierce with respect to the Collateral, or (iv) in each case, assertion of such by Pledgor in writing.

“Control” means “control” as defined in Section 8-106 and Section 9-106 of the UCC.

“Default Event” means (i) any Event of Default with respect to Pledgor, (ii) any Termination Event with respect to which Pledgor is the Affected Party or an Affected Party or (iii) an Extraordinary Event that results in an obligation of Pledgor to pay an amount pursuant to Section 12.7 of the Equity Definitions.

“Dividend Proceeds” has the meaning provided in Section 6(a).

“Eligible Collateral” means Shares or other Collateral acceptable to Secured Party in its sole discretion, provided that Pledgor has good and marketable title thereto, free of all Liens (other than the Security Interests) and Transfer Restrictions and that Secured Party has a valid, first priority perfected security interest therein, a first lien thereon and Control with respect thereto, and provided further that to the extent the number of Shares pledged hereunder exceeds at any time the Maximum Deliverable Number thereof, such excess shares shall not be Eligible Collateral.

“Lien” means any lien, mortgage, security interest, pledge, charge or encumbrance of any kind.

“Location” means, with respect to any party, the place such party is located within the meaning of Section 9-307 of the UCC.

“Maximum Deliverable Number” means, prior to the Prepayment Date, 1,000,000 Shares, and, on any date on and after, the Prepayment Date, a number of Shares or security entitlements in respect thereof equal to the Number of Shares, or the sum of the Number of Shares for each Component (as set forth in the Supplemental Confirmation), if applicable, with respect to which settlement under the Confirmation has not been fully made.

“Ordinary Dividend” means any portion of any cash dividend on the Shares that does not constitute an Extraordinary Dividend.

“Person” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Pledged Items” means, as of any date, any and all securities (or security entitlements in respect thereof) and instruments, cash or other assets delivered by Pledgor to be held by or on behalf of Secured Party under this Agreement as Collateral.

“Security Interests” means the security interests in the Collateral created hereby.

“Transfer Restrictions” means, with respect to any property (including, in the case of securities, security entitlements in respect thereof), any condition to or restriction on the ability of the holder thereof to sell, assign or otherwise transfer such property or item of collateral or to enforce the provisions thereof or of any document related thereto whether set forth in such item of collateral itself or in any document related thereto, including, without limitation, (i) any requirement that any sale, assignment or transfer or enforcement of such property or item of collateral be consented to or approved by any person, including, without limitation, the issuer thereof or any other obligor thereon, (ii) any limitations on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or transferee of such property or item of collateral, (iii) any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any person to the issuer of, any other obligor on or any registrar or transfer agent for, such property or item of collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such property or item of collateral, (iv) any registration or qualification requirement or prospectus delivery requirement for such property or item of collateral pursuant to any federal, state or foreign securities law (including, without limitation, any such requirement arising under the Securities Act) and (v) any legend or other notification appearing on any certificate representing such property to the effect that any such condition or restriction exists; except that the required delivery of any assignment, instruction or entitlement order from Pledgor or any pledgor, assignor or transferor of such property or item of collateral, together with any evidence of the corporate or other authority of such Person, shall not constitute such a condition or restriction.

“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

Section 2. The Security Interests. In order to secure the full and punctual observance and performance of the covenants and agreements contained herein and in the Transaction Agreements:

(a) Pledgor hereby assigns and pledges to Secured Party, and grants to Secured Party, security interests in and to, and a lien upon and right of set-off against, and transfers to Secured Party, as and by way of a security interest having priority over all other security interests, with power of sale, all of its right,

title and interest in and to (i) the Pledged Items described in paragraph (b); (ii) all additions to and substitutions for such Pledged Items (including, without limitation, any securities, instruments or other property delivered or pledged pursuant to Section 4(a) or 5(b)) (such additions and substitutions, the “Additions and Substitutions”); (iii) subject to Section 6 hereof, all income, proceeds and collections received or to be received, or derived or to be derived, now or any time hereafter (whether before or after the commencement of any proceeding under applicable bankruptcy, insolvency or similar law, by or against Pledgor, with respect to Pledgor) from or in connection with the Pledged Items or the Additions and Substitutions (including, without limitation, any shares of capital stock issued by the Issuer in respect of any Shares constituting Collateral or any cash, securities or other property distributed in respect of or exchanged for any Shares constituting Collateral, or into which any such Shares are converted, in connection with any Merger Event or otherwise); (iv) the Collateral Account and all securities and other financial assets (each as defined in Section 8-102 of the UCC), including the Pledged Items and the Additions and Substitutions, and other funds, property or assets from time to time held therein or credited thereto; and (v) all powers and rights now owned or hereafter acquired under or with respect to the Pledged Items or the Additions and Substitutions, and any security entitlements in respect of any of the foregoing (such Pledged Items, Additions and Substitutions, proceeds, collections, powers, rights, Collateral Account, assets held therein or credited thereto and security entitlements being herein collectively called the “Collateral”). Secured Party shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the other rights, remedies and recourses afforded to Secured Party by this Agreement.

(b) On or prior to the date hereof, Pledgor shall deliver to Secured Party in the manner described in Section 5(c) hereunder Eligible Collateral consisting of 1,000,000 Shares. To the extent that on the Prepayment Date, the number of Shares pledged hereunder exceeds the Maximum Deliverable Number, upon request from Pledgor, Secured Party shall instruct Custodian to return such excess Shares to Pledgor.

(c) In the event that the Issuer at any time issues to Pledgor in respect of any Shares constituting Collateral hereunder any additional or substitute shares of capital stock of any class (or any security entitlements in respect thereof), Pledgor shall immediately pledge and deliver to Secured Party in accordance with Section 5(c) all such shares and security entitlements as additional Collateral hereunder.

(d) The Security Interests are granted as security only and shall not subject Secured Party to, or transfer or in any way affect or modify, any obligation or liability of Pledgor or the Issuer with respect to any of the Collateral or any transaction in connection with the Transaction Agreements.

(e) The parties hereto expressly agree that all rights, assets and property at any time held in or credited to the Collateral Account or otherwise held as or constituting Collateral hereunder shall be treated as financial assets (as defined in Section 8-102 of the UCC).

Section 3. Representations and Warranties of Pledgor. Pledgor hereby represents and warrants to Secured Party that:

(a) Pledgor (i) acquired and made full payment for all Pledged Items on November 25, 2009 and owns and, at all times prior to the release of the Collateral pursuant to the terms of this Agreement, will own such Collateral free and clear of any Liens (other than the Security Interests) or Transfer Restrictions and (ii) is not and will not become a party to or otherwise bound by any agreement, other than this Agreement, that (x) restricts in any manner the rights of any present or future owner of Collateral with respect thereto or (y) provides any person other than Pledgor, Secured Party, the Custodian or any other securities intermediary through whom any Collateral is held (but, in the case of the Custodian or any such other securities intermediary, only in respect of Collateral held through it) with Control with respect to any such Collateral.

(b) Other than financing statements or other similar or equivalent documents or instruments with respect to the Security Interests, no financing statement, security agreement or similar or equivalent document or instrument covering all or any part of the Collateral is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect a lien, security interest or other encumbrance of any kind on such Collateral.

(c) All Shares at any time pledged hereunder (or in respect of which security entitlements are pledged hereunder) are and will be issued by an issuer organized under the laws of the Cayman Islands, and uncertificated and either registered in the name of Pledgor or held through the Custodian; and the parties hereto agree to procedures or amendments hereto

necessary to enable Secured Party to maintain a valid and continuously perfected security interest in such Collateral, in respect of which Secured Party will have Control, subject to no prior Lien. The parties hereto agree to negotiate in good faith any such procedures or amendments.

(d) Upon (i) in the case of Collateral consisting of investment property (as defined in Section 9-102(a)(49) of the UCC), (A) the registration of uncertificated Shares in the name of Secured Party or its nominee in accordance with Section 5(c)(B), or (B) the crediting of any securities or other financial assets underlying any such investment property consisting of security entitlements to the Collateral Account or (ii) in the case of Collateral not consisting of investment property, the filing of UCC-1 financing statements in the appropriate filing offices of the appropriate jurisdictions, in each case Secured Party will have a valid and perfected security interest in such Collateral or a security entitlement in respect thereof, in respect of which Secured Party will have (in the case of Collateral consisting of investment property) Control, subject to no prior Lien.

(e) Other than the filing of a UCC-1 financing statement as contemplated by this Agreement, no registration, recordation or filing with any governmental body, agency or official is required in connection with the execution and delivery of this Pledge Agreement or the Transaction Agreements or necessary for the validity or enforceability hereof or thereof or for the perfection or enforcement of the Security Interests.

(f) Pledgor has not performed and will not perform any acts that might prevent Secured Party from enforcing any of the terms of this Agreement or that might limit Secured Party in any such enforcement.

(g) The Location of Pledgor is the address set forth in Section 9(d).

Section 4. Certain Covenants of Pledgor. Pledgor agrees that, so long as any of its obligations under the Transaction Agreements remain outstanding:

(a) Pledgor shall ensure at all times that a Collateral Event of Default shall not occur, and shall pledge additional Collateral in the manner described in Sections 5(b) and 5(c) as necessary to cause such requirement to be met.

(b) Pledgor shall, at the expense of Pledgor and in such manner and form as Secured Party may require, give, execute, deliver, file and record any financing statement, notice, instrument, document, agreement or other papers that may be necessary or desirable in order (i) to create, preserve, perfect, substantiate or validate any security interest granted pursuant hereto, (ii) to create or maintain Control with respect to any such security interests in any investment property (as defined in Section 9-102(a)(49) of the UCC) or (iii) to enable Secured Party to exercise and enforce its rights hereunder with respect to such security interest. To the extent permitted by applicable law, Pledgor hereby authorizes Secured Party to execute and file, in the name of Pledgor or otherwise, UCC financing or continuation statements (which may be carbon, photographic, photostatic or other reproductions of this Agreement or of a financing statement relating to this Agreement) that Secured Party in its sole discretion may deem necessary or appropriate to further perfect, or maintain the perfection of, the Security Interests. Pledgor authorizes Secured Party to originate any instructions to Custodian with respect to the Collateral Account or any Collateral credited thereof without further consent of Pledgor. From the date hereof, the Custodian agrees that it shall (i) not comply with any instructions or other directions concerning the Collateral Account or any Collateral therein originated by Pledgor, and (ii) comply with any instructions or other directions originated by Secured Party relating to the Collateral Account or the Collateral credited thereto without further consent of the Pledgor.

(c) Pledgor shall warrant and defend its title to the Collateral, subject to the rights of Secured Party, against the claims and demands of all persons. Secured Party may elect, but without an obligation to do so, to discharge any Lien of any third party on any of the Collateral.

(d) Pledgor agrees that it shall not change (1) its name or identity, and if Pledgor is not a natural person, its corporate or partnership structure in any manner or (2) its Location, unless in either case (A) it shall have given Secured Party not less than 30 days’ prior notice thereof and (B) such change shall not cause any of the Security Interests to become unperfected, cause Secured Party to cease to have Control in respect of any of the Security Interests in any Collateral consisting of investment property (as defined in Section 9-102(a)(49) of the UCC) or subject any Collateral to any other Lien.

(e) Pledgor agrees that it shall not (1) create or permit to exist any Lien (other than the Security Interests) or any Transfer Restriction upon or with respect to the Collateral, (2) sell or otherwise

dispose of, or grant any option with respect to, any of the Collateral or (3) enter into or consent to any agreement pursuant to which any person other than the Pledgor, Secured Party, the Custodian and any other securities intermediary through whom any of the Collateral is held (but in the case of any such securities intermediary only in respect of Collateral held through it) has or will have Control in respect of any Collateral.

Section 5. Administration of the Collateral and Valuation of the Securities.

(a) The Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.

(b) After the Prepayment Date, Pledgor may pledge additional Collateral that is, upon delivery to Secured Party, Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to Secured Party a certificate of an Authorized Officer of Pledgor substantially in form and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged, (B) identifying the Confirmation, and (C) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 5(c) and any other actions necessary to create for the benefit of Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have (in the case of Collateral consisting of investment property) Control.

(c) Any delivery of Shares as Collateral to Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Shares registered in the name of Pledgor, by delivery of certificates representing such Shares to Secured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Custodian, and the crediting by the Custodian of such securities to the Collateral Account of Secured Party maintained at the Custodian, (B) in the case of Collateral consisting of uncertificated Shares registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Shares instructing such issuer to register such Shares in the name of the Custodian or its nominee, accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and the crediting by the Custodian of such securities to the Collateral Account, (C) in the case of Shares in respect of which security entitlements are held by Pledgor through the Custodian, by the crediting of such Shares, accompanied by any required transfer tax stamps, to the Collateral Account or (D) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.

(d) If on any Business Day Secured Party determines that a Collateral Event of Default shall have occurred, Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.

(e) If on any Business Day Secured Party determines that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.

(f) On each Settlement Date or Cash Settlement Payment Date, as the case may be, unless (i) by 10:00 A.M., New York City time on the Settlement Date, Pledgor shall have otherwise effected the delivery of the Number of Shares to be Delivered for such Settlement Date or delivered the Preliminary Forward Cash Settlement Amount in lieu thereof by 5:00 P.M., New York City time, on the Preliminary Cash Settlement Payment Date or (ii) the Collateral then held by or on behalf of Secured Party hereunder does not include a number of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreements) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) at least equal to the Number of Shares to be Delivered for such Settlement Date,

Secured Party shall deliver or cause to be delivered to itself, or to an affiliate of Secured Party designated by Secured Party, from the Collateral Account, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver the Number of Shares to be Delivered for such Settlement Date under the Transaction Agreement, a number of Shares then held by or on behalf of Secured Party hereunder equal to the Number of Shares to be Delivered for such Settlement Date. Upon any such delivery, Secured Party or such affiliate of Secured Party shall hold such Shares absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).

(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Shares pledged hereunder registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor’s nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.

(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:

(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon, and

(ii) the amount of any and all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Default Event.

Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.

Section 6. Income and Voting Rights in Collateral.

(a) Secured Party shall have the right to receive and retain as Collateral hereunder (i) all proceeds (other than Ordinary Dividends or interest) of the Collateral and (ii) upon the occurrence and during the continuance of a Default Event, all proceeds of the Collateral, including without limitation all proceeds consisting of Ordinary Dividends or interest (“Dividend Proceeds”), and Pledgor shall take all such action as Secured Party shall deem necessary or appropriate to give effect to such right. All such proceeds including, without limitation, all dividends and other payments and distributions that are received by Pledgor shall be received in trust for the benefit of Secured Party and, if Secured Party so directs (but only, in the case of Dividend Proceeds, upon the occurrence and during the continuance of a Default Event), shall be segregated from other funds of Pledgor and shall, forthwith upon demand by Secured Party (but only, in the case of Dividend Proceeds, during the continuance of a Default Event), be delivered over to Secured Party as Collateral in the same form as received (with any necessary endorsement). After all Events of Default have been cured, Secured Party’s right to retain Dividend Proceeds in the Collateral Account under this Section 6(a) shall cease and Secured Party shall pay over to Pledgor out of the Collateral Account any such Collateral consisting of Dividend Proceeds retained in the Collateral Account during the continuance of a Default Event.

(b) Unless a Default Event shall have occurred and be continuing, Pledgor shall have the right, from time to time, to vote and to give consents, ratifications and waivers with respect to the Collateral, and Secured Party shall, upon receiving a written request from Pledgor accompanied by a certificate of an Authorized Officer of Pledgor stating that no Default Event has occurred and is continuing, deliver to Pledgor or as specified in such request such proxies, powers of attorney, consents, ratifications and waivers in respect of any of the Collateral that is registered, or held through a securities intermediary, in the name of Secured Party or its nominee as shall be specified in

such request and shall be in form and substance satisfactory to Secured Party.

(c) If a Default Event shall have occurred and be continuing, Secured Party shall have the right, to the extent permitted by law, and Pledgor shall take all such action as may be necessary or appropriate to give effect to such right, to vote and to give consents, ratifications and waivers, and to take any other action with respect to any or all of the Collateral with the same force and effect as if Secured Party were the absolute and sole owner thereof.

Section 7. Remedies upon Default Events.

(a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Collateral consisting of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Confirmation) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to paragraph 3(k) of the Confirmation) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreements, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreements or hereunder, sell all of the remaining Collateral, or such lesser portion thereof as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreements or hereunder, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.

(b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit

of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:

(i) to demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,

(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,

(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and

(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto;

provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.

(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which Pledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.

(d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities:

first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral;

second, to the payment to Secured Party of an amount equal to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreements as a result of such Default Event;

finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreements have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.

Section 8. Netting and Set-off. (a) If on any date, cash would otherwise be payable or Shares or other property would otherwise be deliverable pursuant to the Transaction Agreements, this Agreement or any other Credit Support Document by Secured Party to Pledgor and by Pledgor to Secured Party and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each

such party’s obligation to make such payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or deliverable by the other such party, replaced by an obligation upon the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller aggregate amount.

(b) In addition to and without limiting any rights of set-off that Secured Party may have as a matter of law, pursuant to contract or otherwise, upon the occurrence of a Default Event, Secured Party shall have the right to terminate, liquidate and otherwise close out the transactions contemplated by the Transaction Agreements, any Credit Support Document or this Agreement pursuant to the terms thereof and hereof, and to set off any obligation it may have to (i) release from the Security Interests or return to Pledgor any Collateral pursuant to Section 5(e) or Section 11 or (ii) make any other payment or delivery pursuant to this agreement or pursuant to any other agreement, against any right Secured Party or any of its affiliates may have against Pledgor, including without limitation any right to receive a payment or delivery pursuant to any provision of the Transaction Agreements. In the case of a set-off of any obligation to return or replace assets against any right to receive assets of the same type, such obligation and right shall be set off in kind. In the case of a set-off of any obligation to return or replace assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the Calculation Agent and the result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by the Calculation Agent) equal to that of the net obligation. In determining the value of any obligation to release or deliver Shares or right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of such Shares at such time. If an obligation or right is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in which case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.

Section 9. Miscellaneous.

(a) Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. All the covenants and agreements herein contained by or on behalf of Pledgor shall bind, and inure to the benefit of, Pledgor’s respective successors and assigns whether so expressed or not, and shall be enforceable by and inure to the benefit of Secured Party and its successors and assigns.

(b) To the extent permitted by law, the unenforceability or invalidity of any provision or provisions of this Agreement shall not render any other provision or provisions herein contained unenforceable or invalid.

(c) Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Pledgor and Secured Party or, in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

(d) All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard forms of telecommunication. Notices to Pledgor shall be directed to it at the address specified on the last page hereof; notices to Secured Party shall be directed to it care of Merrill Lynch, Pierce Fenner & Smith Incorporated, One Bryant Park, New York, New York 10036, Telecopy No. 212-230-8610, Attention: Robert Dilworth.

(e) This Agreement shall in all respects be construed in accordance with and governed by the laws of the State of New York (without reference to choice of law rules thereof except for Section 5-1401 of the New York General Obligations Law); provided that as to Pledged Items located in any jurisdiction other than the State of New York, Secured Party shall have, in addition to any rights under the laws of the State of New York, all of the rights to which a secured party is entitled under the laws of such other jurisdiction. The parties hereto hereby agree that (i) Secured Party’s jurisdiction is the State of New York and (ii) the Custodian’s jurisdiction, within the meaning of Section 8-110(e) of the UCC is the State of New York.

(f) Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Federal and state courts located in the Borough of Manhattan, in the City of New York in any suit or proceeding arising out of or relating to the Transaction Agreements, any Credit Support Document or this Agreement, or the transactions contemplated thereby or hereby.

(g) Each party hereby irrevocably and unconditionally waives any and all right to trial by jury in any legal proceeding arising out of or related to the Transaction Agreements, any Credit Support Document or this Agreement or the transactions contemplated thereby or hereby.

(h) This Agreement may be executed, acknowledged and delivered in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement.

Section 10. Separate Pledge Agreements. This Pledge Agreement is in addition to that certain Pledge Agreement dated as of September 21, 2010 (as amended from time to time, the “Existing Pledge Agreement”) in connection with the Specialized Term Appreciation Retention Sale Transaction Confirmation dated as of September 21, 2010, and shall not impair or otherwise limit any of the rights of Secured Party under the Existing Pledge Agreement. For the avoidance of doubt, the Shares subject to the liens under the Existing Pledge Agreement shall not be included in determining whether Pledgor has satisfied any of its delivery requirements hereunder.

Section 11. Termination of Pledge Agreement. This Agreement and the rights hereby granted by Pledgor in the Collateral shall cease, terminate and be void upon fulfillment of all of the obligations of Pledgor under the Transaction Agreements, under each Credit Support Document and hereunder. Any Collateral remaining at the time of such termination shall be fully released and discharged from the Security Interests and delivered to Pledgor by Secured Party, all at the request and expense of Pledgor.

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Date of Agreement: December 31, 2010

Pledgor: New-Wave Investment Holding Company Limited

Pledgor’s Address for Notices:

20/F Beijing Ideal International Plaza
No. 58 Northwest 4th Ring Road
Haidian District, Beijing, 100080
People’s Republic of China

Fax No. (8610)-82607167
Attention: Chief Executive Officer

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IN WITNESS WHEREOF, the parties have signed this Agreement as of the date and year first above written.


PLEDGOR: NEW-WAVE INVESTMENT HOLDING COMPANY LIMITED
By:	/s/ Charles Guowei Chao
	Name:
	Title:

SECURED PARTY: BANK OF AMERICA, N.A.
By:	/s/ Brian D. Gray
	Name:
	Title:

CUSTODIAN: MERRILL LYNCH, PIERCE FENNER & SMITH INCORPORATED
By:	/s/ David Moran
	Name:
	Title:

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