UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 9)*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

 

Qin Xuetang Fosun International Limited Room 808 ICBC Tower 3 Garden Road Hong Kong China (86) 021-63322820

With a copy to: John Haveman Faegre & Benson LLP 2200 Wells Fargo Center 90 S. Seventh Street Minneapolis, MN 55402 (612) 766-8705

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

 

(Date of Event Which Requires Filing of this Statement)

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

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See Rule 13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting 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 (“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).

 

 

 

* Number of shares is number of Ordinary Shares.  Percent of class is based on 668,267,925 Ordinary Shares reported as outstanding at June 9, 2011 in the Issuer’s annual report on Form 20-F for the fiscal year ended December 31, 2010 and filed by the Issuer with the Securities and Exchange Commission on June 20, 2011.  Number of shares and percentage does not reflect the sales of American Depositary Shares (“ADSs”) reported in Item 3.  After the closing of those sales, Fosun International Limited (“Fosun International”) will hold 21,612,957 American Depositary Shares (“ADSs”), representing 108,064,785 Ordinary Shares or approximately 16.41% of the Ordinary Shares that will then be outstanding.

 

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This Amendment No. 9 amends the Schedule 13D filed with the Securities and Exchange Commission on December 23, 2008 (the “Original 13D”) by Fosun International Limited (“Fosun International”) with respect to Ordinary Shares and American Depositary Shares (each representing five Ordinary Shares) of Focus Media Holding Limited (the “Issuer”), as previously amended by Amendment No. 1 to the Original 13D filed on December 24, 2008, Amendment No. 2 to the Original 13D filed on January 26, 2009, Amendment No. 3 to the Original 13D filed on January 30, 2009, Amendment No. 4 to the Original 13D filed on February 9, 2009, Amendment No. 5 to the Original 13D filed on February 20, 2009, Amendment No. 6 to the Original 13D filed on March 26, 2009, Amendment No. 7 to the Original 13D filed on September 21, 2010 and Amendment No. 8 to the Original 13D filed on September 27, 2010.  Unless otherwise stated herein, the Original 13D remains in full force and effect.  Terms used therein and not defined herein have the meanings ascribed thereto in the Original 13D.

 

Item 3.  Source and Amount of Funds or Other Consideration

 

Item 3 is hereby supplemented as follows:

 

On July 6, 2011, Fosun International and the Issuer entered into a Securities Repurchase Agreement, a copy of which is attached as Exhibit 99.9, pursuant to which Fosun International agreed to sell, and the Issuer agreed to purchase, 1,956,310 ADSs (representing 9,781,550 Ordinary Shares) for an aggregate purchase price of $60,000,027.70, or $30.67 per ADS.  The transaction is scheduled to close within 10 business days after the date of the Securities Repurchase Agreement.

 

Also on July 6, 2011, Fosun International and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) entered into a Placing Agreement, a copy of which is attached as Exhibit 99.10, pursuant to which Fosun International agreed to sell, and Merrill Lynch agreed to purchase, 4,560,000 ADSs (representing 22,800,000 Ordinary Shares) for a purchase price of $139,855,200, or $30.67 per ADS.  The transaction is scheduled to close on July 11, 2011.  These transactions will reduce Fosun International’s holdings in the Issuer to 21,612,957 ADSs, representing 108,064,785 Ordinary Shares.  The Placing Agreement also provides that the parties thereto may, by mutual agreement, increase the number of ADSs to be sold pursuant to the Placing Agreement by up to 1,630,258, representing an additional 8,151,290 Ordinary Shares.

 

The Placing Agreement contemplates that Merrill Lynch will place the ADSs it purchases to its customers or other purchasers in privately negotiated transactions, in over-the-counter sales or as otherwise determined by Merrill Lynch from time to time.  The Placing Agreement also provides that for a period of 60 days after the date of the Placing Agreement, Fosun International will not, without the prior written consent of Merrill Lynch, sell, offer to sell, or otherwise dispose of or transfer any additional ADSs or Ordinary Shares except for the sale to the Issuer discussed in the previous paragraph.

 

Item 4.  Purpose of Transaction.

 

Item 4 is hereby amended and restated in its entirety as follows:

 

All of the ADSs and Ordinary Shares beneficially owned by Fosun International have been acquired for investment purposes.  Fosun International has agreed not to further lower its stake in the Issuer for a period of 60 days from the date of the Placing Agreement described in Item 3.  However, Fosun International will continue to evaluate its ownership and voting position in the Issuer and may consider and pursue the following future courses of action, among others: (i) disposing of additional ADSs, and potentially all of its remaining ADSs, in open market sales or in privately negotiated transactions; (ii) continuing to hold its remaining ADSs for investment; or (iii) acquiring additional ADSs or Ordinary Shares in the open market or in privately negotiated transactions.  Fosun International’s future actions with regard to this investment will be dependent upon its review and evaluation of numerous factors, including the relative attractiveness of alternative business and investment opportunities available to Fosun International and the financing needs of those opportunities; the price levels of the Issuer’s ADSs and Ordinary Shares; the Issuer’s business, financial condition, operating results and prospects; and general market and economic conditions.

 

Except as set forth above, Fosun International has no present plans or proposals which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

 

Item 5.  Interest in Securities of the Issuer

 

Item 5 is hereby amended and restated in its entirety as follows:

 

(a)  See Items 11 and 13 of the cover pages to this Schedule 13D, Amendment No. 9 for the aggregate number and percentage of Ordinary Shares underlying the ADSs that are beneficially owned by Fosun International as of July 6, 2011.

 

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(b)  See Items 7 through 10 of the cover pages to this Schedule 13D, Amendment No. 9 for the number and percentage of Ordinary Shares underlying the ADSs beneficially owned by Fosun International as of July 6, 2011 as to which there is sole or shared power to vote or direct the vote, and sole or shared power to dispose or direct the disposition.

 

(c)  Other than as reported in Item 3 above, there have been no transactions in the Issuer’s ADSs or Ordinary Shares effected by Fosun International during the past sixty days.

 

(d)  No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities covered by this Schedule 13D.

 

(e)  Not applicable.

 

Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

Item 6 is hereby amended and restated in its entirety as follows:

 

Except for the Securities Repurchase Agreement with the Issuer and the Placing Agreement with Merrill Lynch described in Item 3 above, neither Fosun International nor, to Fosun International’s knowledge, any person named in Exhibit 99.1 is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Issuer, including the transfer or voting of any Issuer securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

Item 7.  Material to Be Filed as Exhibits

 

Item 7 is hereby amended and restated in its entirety as follows:

 

Exhibit No.		Description
99.1		List of directors and executive officers of Fosun International and information regarding persons controlling Fosun International (incorporated by reference to Exhibit 99.1 to Amendment No. 7 to the Original 13D filed on September 21, 2010 by Fosun International with the Commission).
99.2		Information regarding transactions in Focus Media ADSs by Fosun International during the 60 days prior to the filing of the Original 13D (incorporated herein by reference to Exhibit 99.2 to the Original 13D filed on December 23, 2008 by Fosun International with the Commission).
99.3		Information regarding purchases of Focus Media ADSs by Fosun International between the filings of Amendment No. 1 and Amendment No. 2 to the Original 13D (incorporated herein by reference to Exhibit 99.3 to Amendment No. 2 to the Original 13D filed on January 26, 2009 by Fosun International with the Commission).
99.4		Information regarding purchases of Focus Media ADSs by Fosun International between the filings of Amendment No. 2 and Amendment No. 3 to the Original 13D (incorporated herein by reference to Exhibit 99.4 to Amendment No. 3 to the Original 13D filed on January 30, 2009 by Fosun International with the Commission).
99.5		Information regarding purchases of Focus Media ADSs by Fosun International between the filings of Amendment No. 3 and Amendment No. 4 to the Original 13D (incorporated herein by reference to Exhibit 99.5 to Amendment No. 4 to the Original 13D filed on February 9, 2009 by Fosun International with the Commission).
99.6		Information regarding purchases of Focus Media ADSs by Fosun International between the filings of Amendment No. 4 and Amendment No. 5 to the Original 13D (incorporated herein by reference to Exhibit 99.6 to Amendment No. 5 to the Original 13D filed on February 20, 2009 by Fosun International with the Commission).
99.7		Information regarding purchases of Focus Media ADSs by Fosun International since the filing of Amendment No. 5 and Amendment No. 6 to the Original 13D (incorporated herein by reference to Exhibit 99.7 to Amendment No. 5 to the Original 13D filed on February 20, 2009 by Fosun International with the Commission).

 

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99.8		Securities Repurchase Agreement, dated as of September 20, 2010, between the Issuer and Fosun International (incorporated by reference to Exhibit 99.8 to Amendment No. 7 to the Original 13D filed on September 21, 2010 by Fosun International with the Commission).
99.9		Securities Repurchase Agreement, dated as of July 6, 2011, between the Issuer and Fosun International (filed herewith).
99.10		Placing Agreement, dated as of July 6, 2011, between Fosun International and Merrill Lynch, Pierce, Fenner & Smith Incorporated (filed herewith).

 

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Signature

 

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

 

 

Date: July 7, 2011

 

FOSUN INTERNATIONAL LIMITED
By:	/s/ Qin Xuetang
	Qin Xuetang
	Director

 

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EXHIBIT 99.9

 

SECURITIES REPURCHASE AGREEMENT

 

This SECURITIES REPURCHASE AGREEMENT (this “Agreement”), dated as of July 6, 2011, is entered into between Fosun International Limited, a Hong Kong corporation (the “Seller”), and Focus Media Holding Limited, a Cayman Islands limited company (“Focus Media”).

 

W I T N E S S E T H:

 

WHEREAS, as of the date hereof, the Seller owns the Repurchased ADSs (as defined herein);

 

WHEREAS, the Seller desires to sell, convey, transfer and assign to Focus Media, and Focus Media desires to repurchase, acquire and accept from the Seller, the Repurchased ADSs, upon the terms and subject to the conditions set forth herein; and

 

WHEREAS, certain terms used in this Agreement are defined in Section 1.1.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereto hereby covenant and agree as follows:

 

ARTICLE I
DEFINITIONS

 

1.1           Certain Definitions.  For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1:

 

“ADSs” means American Depositary Shares, each representing five ordinary shares, par value US$0.00005 per share, of Focus Media.

 

“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and, for purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by Contract, as trustee or executor, or otherwise.

 

“Business Day” means any weekday that the banks in the Cayman Islands, the Hong Kong S.A.R., the People’s Republic of China, and the United States of America are generally open for business.

 

“Contract” means any written servicing agreement, management agreement, remarketing agreement, support services agreement, purchase agreement, loan agreement, indenture, letter of credit (including related letter of credit applications and reimbursement obligations), mortgage, security agreement, pledge agreement, deed of trust, bond, note, guarantee, surety obligation, warranty agreement, license, franchise agreement, power of attorney, purchase order, sales order, lease or endorsement agreement, and any other written agreement, contract, instrument, obligation, plan, offer, commitment, arrangement or understanding to which a Person is a party

 

 

or by which any of its properties or assets may be bound or affected, in each case as amended, supplemented, waived or otherwise modified.

 

“Governmental Body” means any government or governmental, quasi-governmental or regulatory body thereof, or political subdivision thereof, whether foreign, federal, state, or local, or any agency, board, bureau, instrumentality or authority thereof, or any court, arbitrator, tribunal or other public body.

 

“Law” means any federal, state, local or foreign law, statute, code, ordinance, rule or regulation having the force of law, declaration or agency requirement.

 

“Liability” means any debt, liability, commitment, obligation, demand or assessment of any kind, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or otherwise, whenever or however arising (including, whether arising out of any Contract or tort based on negligence or strict liability).

 

“Lien” means any lien, pledge, mortgage, security interest, charge, claim, lease, option, easement, servitude, right of first refusal, right of first offer or other restrictive covenant or agreement, voting trust or agreement, transfer restriction (other than transfer restrictions arising under applicable federal, state or foreign statutory Laws) or other similar restriction or encumbrance.

 

“NASDAQ” means the NASDAQ Stock Market.

 

“Order” means any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award of a Governmental Body.

 

“Organizational Documents” means: (i) with respect to any corporation, its articles or certificate of incorporation and by-laws, (ii) with respect to any limited liability company, the limited liability company or operating agreement and articles of organization or articles or certificate of formation of a limited liability company and (iii) with respect to any other type of entity, its organizational or constituent documents.

 

“Permits” means any approvals, authorizations, consents, licenses, permits, clearances, qualifications or certificates of a Governmental Body or self-regulatory organization.

 

“Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body or other entity.

 

“Purchase Price” means an amount equal US$60,000,027.70.

 

“Repurchased ADSs” means an aggregate of 1,956,310 ADSs owned by the Seller as of the date hereof.

 

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1.2           Terms Defined Elsewhere in this Agreement.  For purposes of this Agreement, the following terms have meanings set forth in the Sections indicated:

 

Term		Section
Agreement		Preamble
Chosen Courts		7.3(b)
Closing		3.1
Closing Date		3.1
Focus Media		Preamble
Focus Media Documents		5.2
Seller Documents		4.2
Seller		Preamble

 

1.3           Other Definitional and Interpretive Matters.  Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:

 

(a)           Dollars.  Any reference in this Agreement to US$ shall mean United States dollars.

 

(b)           Schedules.  All Schedules attached hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.  Disclosure of any item in a Schedule shall be deemed to be disclosure made with respect to each other Schedule to which the relevance of such disclosure is readily apparent on its face.  Disclosure of any item on any Schedule shall not constitute an admission or indication that such item or matter is material or would have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement or to consummate the transactions hereby.  No disclosure on a Schedule relating to a possible breach or violation of any Contract, Law, Permit or Order shall be construed as an admission or indication that a breach or violation exists or has actually occurred.  Any capitalized terms used in any Schedule, but not otherwise defined therein, shall be defined as set forth in this Agreement

 

(c)           Gender and Number.  Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.

 

(d)           Headings and Captions.  The division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement.  All references in this Agreement to any “Section” or “Article” are to the corresponding Section or Article of this Agreement unless otherwise specified.

 

(e)           Herein.  The words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.

 

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(f)            Including.  The word “including” or any variation thereof means (unless the context of its usage otherwise requires) “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

 

(g)           Documents.  References to any Contract or other document, including this Agreement, include references to such Contract or document as it may be amended, supplemented, replaced or restated from time to time in accordance with its terms and subject to compliance with any applicable restrictions or requirements set forth therein.

 

(h)           Interpretation.  The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

ARTICLE II
REPURCHASE AND SALE; PURCHASE PRICE

 

2.1           Repurchase and Sale of the Repurchased ADSs.  At the Closing, on the terms and subject to the conditions set forth in this Agreement, the Seller shall sell, convey, transfer and assign to Focus Media, and Focus Media shall repurchase, acquire and accept from the Seller, all of the Seller’s right, title and interest in and to the Repurchased ADSs.

 

2.2           Payment of the Purchase Price.  At the Closing, Focus Media shall pay to the Seller an aggregate cash amount equal to the Purchase Price by wire transfer of immediately available funds to the account or accounts designated by the Seller.

 

ARTICLE III
CLOSING

 

3.1           Closing Date.  The consummation of the purchase and sale of the Repurchased ADSs as provided in Article II (the “Closing”) shall take place at the offices of Simpson Thacher & Bartlett LLP located at ICBC Tower, 35/F, 3 Garden Road, Central, Hong Kong (or at such other place as the parties hereto may designate) within ten (10) Business Days after the date of this Agreement, unless another time, date or place is agreed to by the parties hereto (the “Closing Date”).

 

3.2           Deliveries by Focus Media.  At the Closing, Focus Media shall deliver, or caused to be delivered, to the Seller the following:

 

(a)           the Purchase Price in accordance with Section 2.2; and

 

(b)           an executed counterpart by Focus Media to the Joint Instruction Letter; and

 

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(c)           such other documents and instruments necessary to consummate the transactions contemplated by this Agreement upon the terms and conditions set forth in this Agreement, all of which shall be in form and substance reasonably satisfactory to the Seller.

 

3.3           Deliveries by the Seller.  At the Closing, the Seller shall deliver, or cause to be delivered, to Focus Media the following:

 

(a)           one or more receipts acknowledging payment of the Purchase Price by Focus Media;

 

(b)           an executed counterpart by the Seller to the Joint Instruction Letter; and

 

(c)           such other documents and instruments necessary to consummate the transactions contemplated by this Agreement upon the terms and conditions set forth in this Agreement, all of which shall be in form and substance reasonably satisfactory to Focus Media.

 

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER

 

The Seller represents and warrants to Focus Media as of the date hereof and as of the Closing Date as follows:

 

4.1           Organization and Good Standing.  The Seller is duly incorporated, validly existing and in good standing under the Laws of Hong Kong.  The Seller is duly qualified or authorized to conduct its business and is in good standing under the Laws of each jurisdiction where such qualification is required.

 

4.2           Authorization and Enforceability of Agreement.  The Seller has the full legal right and all requisite power and authority to execute and deliver this Agreement and each Contract, document or certificate contemplated by this Agreement or to be executed and delivered in connection with the consummation of the transactions contemplated by this Agreement (the “Seller Documents”) and to consummate the transactions contemplated hereby and thereby.  The execution and delivery by the Seller of this Agreement and the Seller Documents, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all requisite action on the part of the Seller and no additional corporate or shareholder authorization or consent is or will be required in connection with the execution, delivery and performance by the Seller of this Agreement or the Seller Documents or the consummation of the transactions contemplated hereby and thereby.  This Agreement has been, and each of the Seller Documents will be at or prior to the Closing, duly executed and delivered by the Seller, and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and the Seller Documents when so executed and delivered will constitute, valid and binding obligations of the Seller, enforceable against the Seller in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, and to general principles of equity.

 

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4.3           Ownership of the Repurchased ADSs.  The Seller is and shall be on the Closing Date the sole record and beneficial owner and holder of, and has good and valid title to, the Repurchased ADSs free and clear of any Liens (other than Liens in favor of Focus Media or created by or on behalf of Focus Media).  The sale and delivery of the Repurchased ADSs as contemplated by this Agreement are not subject to any preemptive right, right of first refusal or other right or restriction, and the Seller is not a party to any voting trust, proxy or other Contract with respect to the voting or transfer of the Repurchased ADSs that will survive the Closing Date.  Upon the delivery of the Repurchased ADSs pursuant to Section 2.1, Focus Media will acquire good and valid title to the Repurchased ADSs free and clear of any Liens (other than Liens in favor of Focus Media or created by or on behalf of Focus Media).

 

4.4           Conflicts; Consents of Third Parties.

 

(a)           None of the execution and delivery by the Seller of this Agreement or the Seller Documents, or the consummation of the transactions contemplated hereby or thereby, or compliance by the Seller with any of the provisions hereof or thereof will (i) violate the Organizational Documents of the Seller, (ii) contravene, conflict with or constitute or result in a breach or violation in any material respect of any Law, Order or Permit applicable to the Seller or its assets or by which the Seller is bound, (iii) contravene, conflict with, breach or violate, constitute a default under, or result in or permit the termination or cancellation (whether after the giving of notice or the lapse of time or both) of any rights or obligations, or result in a loss of any benefit or imposition of any penalties, under any Contract to which the Seller is a party or by which its properties or assets are subject or bound or (iv) result in the creation of or imposition of any Liens (other than Liens created by or on behalf of Focus Media) on the Repurchased ADSs.

 

(b)           No consent, waiver, approval, Order, Permit or authorization of, or filing with, or notification to, any Governmental Body or any self-regulatory organization applicable to the Seller, is required on the part of the Seller in connection with (i) the execution and delivery of this Agreement, the Seller Documents and any other Contracts to be executed and delivered in connection with the transactions contemplated hereby and thereby, (ii) compliance by the Seller with any of the provisions hereof or thereof, or (iii) the consummation of the transactions contemplated hereby or thereby, except for any filing required with the U.S. Securities and Exchange Commission to disclose the entry into this Agreement and the transactions contemplated hereby.

 

4.5           Financial Advisors.  Except for fees and expenses which shall be paid by the Seller or any of its Affiliates, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the Seller or any of its Affiliates who is or who might be entitled to any fee or commission or like payment from any of the parties hereto or any of their respective Affiliates in connection with the transactions contemplated hereby.

 

4.6           Seller Acknowledgements.

 

(a)           The Seller: (i) has sufficient knowledge and expertise to evaluate the business and financial condition of Focus Media, its Affiliates and its subsidiaries and the merits

 

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and risks of the purchase and sale of the Repurchased ADSs; (ii) has conducted its own independent investigation of such matters as is necessary for the Seller to make an informed decision with respect to purchase and sale of the Repurchased ADSs, and has had the opportunity to ask questions of, and receive answers, from Focus Media and its officers and directors, and to obtain such additional information which Focus Media, its Affiliates or its subsidiaries possess or could acquire without unreasonable effort or expense, as the Seller deems necessary or appropriate, and all such questions have been answered to the Seller’s full satisfaction; (iii) has made its own assessment and has satisfied itself concerning relevant tax, legal and other economic considerations relevant to the purchase and sale of the Repurchased ADSs; (iv) has not relied, and will not rely, upon any other party for any investigation into, assessment of, or evaluation or information with respect to the Repurchased ADSs, Focus Media, its Affiliates, its subsidiaries or the purchase and sale of the Repurchased ADSs; and (v) can bear any economic loss as a result of the purchase and sale of the Repurchased ADSs.  Neither such inquiries nor any other due diligence investigations conducted by the Seller or its advisors shall imply that Focus Media has made any representation or warranty in respect of Focus Media, its Affiliates, its subsidiaries, the Repurchased ADSs or the purchase and sale of the Repurchased ADSs, other than the matters set forth herein.

 

(b)           The Seller acknowledges and understands that Focus Media and its Affiliates and representatives may be in possession of material non-public information not known to the Seller.  The Seller further acknowledges that such information may be indicative of a value of the Repurchased ADSs that may be substantially less or substantially more than the Purchase Price or otherwise adverse to the Seller and that such information may be material to the Seller’s decision to sell the Repurchased ADSs.

 

4.7           No Other Representations or Warranties.  Except for the representations and warranties contained in this Article IV, the Seller does not make any other express or implied representation or warranty with respect to any matter, including with respect to (i) the Seller, (ii) the Repurchased ADSs, (iii) Focus Media or its Affiliates, (iv) the condition, value, quality or future revenues, costs, expenditures, cash flow, results of operations, collectability of accounts receivable, financial condition, projections, forecasts, estimates, plans or budgets of future revenues, expenses or expenditures or prospects that may result from the acquisition of the Repurchased ADSs, or (v) the accuracy or completeness of any of the information provided or made available to Focus Media, its Affiliates or their respective agents or representatives prior to the execution of this Agreement.

 

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF FOCUS MEDIA

 

Focus Media represents and warrants to the Seller as of the date hereof and as of the Closing Date as follows:

 

5.1           Organization and Good Standing.  Focus Media is duly organized, validly existing and in good standing under the Laws of the Cayman Islands.  Focus Media is duly qualified or authorized to conduct its business and is in good standing under the Laws of each jurisdiction where such qualification is required.

 

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5.2           Authorization and Enforceability of Agreement.  Focus Media has the full legal right and all requisite power and authority to execute and deliver this Agreement and each Contract, document or certificate contemplated by this Agreement or to be executed and delivered in connection with the consummation of the transactions contemplated by this Agreement (the “Focus Media Documents”) and to consummate the transactions contemplated hereby and thereby.  The execution and delivery by Focus Media of this Agreement and the Focus Media Documents, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all requisite action on the part of Focus Media, and no additional corporate or shareholder authorization or consent is or will be required in connection with the execution, delivery and performance by Focus Media of this Agreement or the Focus Media Documents or the consummation of the transactions contemplated hereby and thereby.  This Agreement has been, and each of the Focus Media Documents will be at or prior to the Closing, duly executed and delivered by Focus Media, and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and the Focus Media Documents when so executed and delivered will constitute, valid and binding obligations of Focus Media, enforceable against Focus Media in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, and to general principles of equity.

 

5.3           Conflicts; Consents of Third Parties.

 

(a)           None of the execution and delivery by Focus Media of this Agreement or the Focus Media Documents, or the consummation of the transactions contemplated hereby or thereby, or compliance by Focus Media with any of the provisions hereof or thereof will (i) violate the Organizational Documents of Focus Media, (ii) contravene, conflict with or constitute or result in a breach or violation in any material respect of any Law, Order or Permit (including, without limitation, (x) the Securities Act of 1993, as amended, and the rules and regulations thereunder, (y) the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder and (z) the rules and regulations of NASDAQ) applicable to Focus Media or its assets or by which Focus Media is bound or (iii) contravene, conflict with, breach or violate, constitute a default under, or result in or permit the termination or cancellation (whether after the giving of notice or the lapse of time or both) of any rights or obligations, or result in a loss of any benefit or imposition of any penalties, under any Contract to which Focus Media is a party or by which its properties or assets are subject or bound.

 

(b)           No consent, waiver, approval, Order, Permit or authorization of, or filing with, or notification to, any Governmental Body or any self-regulatory organization applicable to Focus Media, is required on the part of Focus Media in connection with (i) the execution and delivery of this Agreement, the Focus Media Documents and any other Contracts to be executed and delivered in connection with the transactions contemplated hereby and thereby, (ii) compliance by Focus Media with any of the provisions hereof or thereof, or (iii) the consummation of the transactions contemplated hereby or thereby, except for any filing required with the U.S. Securities and Exchange Commission to disclose the entry into this Agreement and the transactions contemplated hereby.

 

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5.4           Financial Advisors.  Except for fees and expenses which shall be paid by Focus Media or any of its Affiliates, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Focus Media or any of its Affiliates who is or who might be entitled to any fee or commission or like payment from any of the parties hereto or any of their respective Affiliates in connection with the transactions contemplated hereby.

 

5.5           No Other Representations or Warranties.  Except for the representations and warranties contained in this Article V, Focus Media does not make any other express or implied representation or warranty with respect to any matter, including, with respect to (i) Focus Media, (ii) the Repurchased ADSs, (iii) the Seller or its Affiliates, (iv) the condition, value, quality or future revenues, costs, expenditures, cash flow, results of operations, collectability of accounts receivable, financial condition, projections, forecasts, estimates, plans or budgets of future revenues, expenses or expenditures or prospects that may result from the acquisition of the Repurchased ADSs, or (v) the accuracy or completeness of any of the information provided or made available to the Seller, its Affiliates or their respective agents or representatives prior to the execution of this Agreement.

 

ARTICLE VI
COVENANTS

 

6.1           Further Assurances.  Each of the Seller and Focus Media shall use its commercially reasonable efforts to (a) take all actions necessary or appropriate to consummate the transactions contemplated by this Agreement and (b) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement.

 

6.2           Release.  To the fullest extent permitted by law, the Seller hereby releases and waives any and all claims, causes of action, actions, proceedings, suits, judgments, liens and executions, whether known or unknown claims and causes of action now or hereafter arising, whether in law or in equity (including attorneys’ fees), against Focus Media or its Affiliates or its or its Affiliates’ respective current and former partners, officers, directors, employees, controlling persons, representatives and agents arising from, based upon or relating to any non-disclosure as described in Section 4.6 hereof or the Seller’s failure to review the information provided to the Seller as described in Section 4.6 hereof and further covenants not to sue Focus Media or its Affiliates or its or its Affiliates’ respective current and former partners, officers, directors, employees, controlling persons, representatives and agents for any loss, damage or liability arising from, based upon or relating to such non-disclosure or the Seller’s failure to review such disclosed information.

 

ARTICLE VII
MISCELLANEOUS

 

7.1           Expenses.  Except as otherwise provided in this Agreement, each party hereto shall bear its own expenses incurred in connection with the negotiation and execution of this

 

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Agreement and each other Contract, certificate and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby.

 

7.2           Entire Agreement; Amendments and Waivers.  This Agreement (including the Schedules hereto) represents the entire understanding and agreement between the parties hereto and thereto with respect to the subject matter hereof and thereof.  This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought.  No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein.  The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach.  No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.

 

7.3           Governing Law, etc.

 

(a)           This Agreement shall be governed by and construed in accordance with the Laws of the State of New York applicable to contracts made and performed in such State without giving effect to the choice of Law principles of such State that would require or permit the application of the laws of another jurisdiction.

 

(b)           The parties hereto hereby irrevocably submit to the exclusive jurisdiction of the United States District Court for the Southern District of New York or any other New York State court sitting in New York City (the “Chosen Courts”) over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto may be heard and determined only in the Chosen Courts.  The parties hereto hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in the Chosen Courts or any defense of inconvenient forum for the maintenance of such dispute.  Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

 

(c)           Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 7.4.  Nothing in this Section 7.3(c) will limit the jurisdictions in which a judgment of the Chosen Courts may be enforced.

 

(d)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT

 

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OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

7.4           Notices.  All notices, service of process and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one (1) business day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision):

 

If to the Seller, to:

 

Fosun International Limited
Suite 808, ICBC Tower
3 Garden Road
Central, Hong Kong
Facsimile:           +8621-63322997
Attention:           Mr. Pan Dong Hui

 

with copies (which shall not constitute notice) to:

 

Faegre & Benson LLP
2200 Wells Fargo Center
90 S. Seventh Street
Minneapolis, MN 55402
USA
Facsimile:           +1-612-766-1600
Attention:           Mr. John Haveman

 

If to Focus Media, to:

 

Focus Media Holding Limited
28F, No. 369, Zhaofeng World Trade Tower
Jiangsu Road, Shanghai
PRC 200050
Facsimile:           +86 (21) 5240-0950
Attention:           Alex Deyi Yang

 

with copies (which shall not constitute notice) to:

 

Simpson Thacher & Bartlett LLP
ICBC Tower, 35/F
3 Garden Road
Central, Hong Kong
Facsimile:           +852-2869-7694
Attention:           Mr. Chris K.H. Lin, Esq.

 

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7.5           Severability.  If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to the Seller, on the one hand, or Focus Media, on the other hand.  Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

7.6           Binding Effect; Assignment.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person not a party to this Agreement except as provided below.  No assignment of this Agreement or of any rights or obligations hereunder may be made by any of the parties hereto, directly or indirectly (by operation of law or otherwise), without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void.

 

7.7           Non-Recourse; Limitation of Liability.

 

(a)           No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of the Seller or any of its Affiliates shall have any Liability for any obligations or Liabilities of the Seller under this Agreement or the Seller Documents of or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby.  No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of Focus Media or any of its Affiliates shall have any Liability for any obligations or Liabilities of Focus Media under this Agreement or Focus Media Documents of or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby.

 

(b)           EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT THE SELLER SHALL NOT HAVE ANY LIABILITY FOR OR BE RESPONSIBLE FOR ANY LOSSES TO FOCUS MEDIA, ITS AFFILIATES OR ANY OTHER PERSON WITH RESPECT TO ANY BREACHES OF THE SELLER’S REPRESENTATIONS AND WARRANTIES IN ARTICLE IV (AS MODIFIED BY THE SCHEDULES HERETO) IN EXCESS OF THE PURCHASE PRICE.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT FOCUS MEDIA SHALL NOT HAVE ANY LIABILITY FOR OR BE RESPONSIBLE FOR ANY LOSSES TO THE SELLER, ITS AFFILIATES OR ANY OTHER PERSON WITH RESPECT TO ANY BREACHES OF FOCUS MEDIA’S REPRESENTATIONS AND WARRANTIES IN ARTICLE V IN EXCESS OF THE PURCHASE PRICE.

 

7.8           Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original copy of this Agreement and all of which, when taken

 

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together, shall be deemed to constitute one and the same agreement.  Signed counterparts of this Agreement may be delivered by facsimile and by scanned PDF image.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective authorized officers as of the date first written above.

 

	FOCUS MEDIA HOLDING LIMITED
	By:	/s/ Jason Jiang Nanchun
	Name:	Jason Jiang Nanchun
	Title:	Director

 

 

	FOSUN INTERNATIONAL LIMITED
	By:	/s/ Guo Guangchang
	Name:	Guo Guangchang
	Title:	Director

 

EXHIBIT 99.10

 

PLACING AGREEMENT

 

THIS PLACING AND SUBSCRIPTION AGREEMENT is made on July 6, 2011

 

BETWEEN:

 

(1)                              FOSUN INTERNATIONAL LIMITED, a company duly incorporated in Hong Kong, whose registered office is at Suite 808, ICBC Tower, 3 Garden Road, Central, Hong Kong (the “Vendor”); and

 

(2)                              MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, whose principal offices are located at One Bryant Park, New York, New York 10036 (“ML”).

 

WHEREAS:

 

(A)                           At the date hereof, the Vendor holds 28,129,267 American Depositary Receipts (together with all rights attaching thereto) (“ADRs”) representing 140,646,335 ordinary shares (the “Shares”) in Focus Media Holding Limited (the “Company”).

 

(B)                             The Company’s ADRs are currently listed on Nasdaq Stock Market (the “Stock Exchange”).

 

NOW IT IS HEREBY AGREED as follows:

 

1                                      SALE TO THE PLACING AGENT AND THE PLACING

 

1.1                            Subject to the provisions of this Agreement, the Vendor hereby agrees to sell to Merrill Lynch, Pierce, Fenner & Smith Incorporated (the “Placing Agent”) and the Placing Agent, relying on the representations, warranties and undertakings herein contained and subject to the conditions as hereinafter mentioned, agrees to purchase 4,560,000 ADRs (the “Sale Shares”) at a per ADR price of US$30.67.  It is contemplated that the Placing Agent will place the Sale Shares to its customers or other purchasers in privately negotiated transactions, in over-the-counter sales or as otherwise determined by the Placing Agent from time to time (the “Placing”).  In addition, upon the mutual agreement of the Vendor and the Placing Agent, the number of Sale Shares may be increased by up to 1,630,258 additional ADRs, provided that neither party shall be obligated to agree to any such increase.

 

1.2                            The Vendor hereby confirms that this appointment confers on the Placing Agent all powers, authorities and discretions on behalf of the Vendor which are reasonably and properly necessary for, or reasonably incidental to, the Placing and hereby ratifies and confirms everything which the Placing Agent has done in connection with the Placing prior to the date of this Agreement.

 

1.3                            In connection with the purchase and placement of the Sale Shares: (i) the Placing Agent will act at arms’ length and owes no fiduciary duties to the Vendor or any other person, (ii) the Placing Agent may have interests that differ from those of the Vendor. The Vendor waives to the full extent permitted by applicable law any claims it may have against the Placing Agent arising from an alleged breach of fiduciary duty in connection with the purchase and placement of the Sale Shares.

 

1.4                            Against compliance by the Vendor with its obligations pursuant to Clause 2.1 and subject to the condition that the representations and warranties of the Vendor contained herein are true, accurate and correct as of the date hereof and on July 11, 2011 or such other date as the Vendor and the Placing Agent shall agree for the closing (the “Closing Date”), the Placing Agent shall on the Closing Date make payment to the Vendor in United States dollars of the aggregate placing price of the Sale Shares, by wire transfer in immediately available funds to an account of the Vendor designated by the Vendor to the Placing Agent at least 48 hours before the Closing Date, provided that the Vendor shall have effected the transfer and delivery of the Sale Shares as provided by Clause 2.1.

 

2                                      UNDERTAKINGS OF THE VENDOR

 

2.1                            All of the Sale Shares are in book entry form within the system administered by the Depository Trust Corporation, and the Vendor shall take all necessary and appropriate steps to enable the Sale Shares to be credited on the Closing Date in such names and amounts as requested by the Placing Agent.

 

 

2.2                            The Vendor shall make all appropriate disclosures pursuant to, and will comply in all respects with, applicable law, regulation or direction in connection with the Placing.

 

2.3                            Without prejudice to the foregoing obligations, the Vendor undertakes with the Placing Agent that it shall do all such other acts and things as may be reasonably required to be done by it to carry into effect the Placing in accordance with the terms of this Agreement.

 

2.4                            The Vendor shall ensure that none of its associates (as defined in the United States Securities Act of 1933, as amended (the “Securities Act”)) shall purchase the Sale Shares under the Placing.

 

3                                      PAYMENT OF FEES AND EXPENSES

 

3.1                            Each party shall bear its own expenses incurred in connection with the transactions contemplated by this Agreement.

 

3.2                            All sums payable by the Vendor under this Agreement shall be paid free and clear of any deductions, withholdings, set-offs or counterclaims (together “Withholdings”), save only as may be required by law. If any Withholdings are required by law the Vendor shall be obliged to pay such sum as will after such Withholding has been made leave the party to this Agreement receiving it with the same amount as such party would have been entitled to receive in the absence of a requirement to make a Withholding.

 

4                                      REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS

 

4.1                            The Vendor hereby represents, warrants and undertakes to the Placing Agent as follows:

 

4.1.1                  Incorporation: the Vendor is duly incorporated and validly existing under the laws of the place of its incorporation and the Vendor has the power under its constitutional documents to enter into this Agreement and this Agreement (and its performance) has been duly authorised (such authorisation remaining in full force and effect) and executed by, and constitutes valid and legally binding and enforceable obligations of, the Vendor in accordance with its terms;

 

4.1.2                  Ownership and title of Sale Shares: the Vendor is the beneficial owner of 28,129,267 ADRs, including the Sale Shares, as at the date of this Agreement and upon the sale of the Sale Shares to the Placing Agent, the Placing Agent shall acquire good legal, beneficial and marketable title to the Sale Shares, free from any lien, charge, encumbrance or third party right whatsoever;

 

4.1.3                  Non-public information: The Vendor is not in possession of any non-public information relating to the Company or its businesses the release of which could materially affect the trading price of the ADRs, or the Shares, the Company or the Company and its subsidiaries (the “Group”).  In addition, to the best knowledge of the Vendor, since December 31, 2010, there has not occurred any material adverse change, or development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company or the Group;

 

4.1.4                  No conflict: the compliance by the Vendor with all of the provisions of this Agreement, as well as the consummation of the transactions herein contemplated, will not conflict with or result in a breach or violation of, or result in any third party consent being required under, any of the terms or provisions of the constitutional documents or any indenture, mortgage, deed of trust, agreement or instrument, decree, regulation, governmental agency or law, order, rule or regulation to which the Vendor is a party;

 

4.1.5                  Consents: all regulatory and judicial consents, approvals, orders or qualifications required to be obtained by the Vendor under all relevant jurisdictions for the sale of the Sale Shares or the consummation of the transactions contemplated by this Agreement have been duly obtained and are in full force and effect;

 

4.1.6                  Taxes/Duties: no stamp or other transfer taxes or duties, and no indirect taxes or duties, are payable by the Placing Agent in connection with the sale to the Placing Agent and delivery of the Sale Shares in the manner contemplated hereunder;

 

4.1.7                  Insider trading: the Vendor has not been, is not and will not be at any time engaged in insider trading in connection with the Placing and the related transactions entered into or to be entered into pursuant to this Agreement; neither the Vendor nor any person acting on behalf of the Vendor or under the control of the Vendor has taken or will take, directly or indirectly, any action designed or which was designed, or which constitutes or has constituted or might reasonably be or have been

 

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expected to cause or result in, stabilisation or manipulation of the price of any ADRs, Shares or other securities of the Company;

 

4.1.8                  Non-affiliate opinion: the Vendor has caused to be delivered to the Placing Agent an opinion of counsel, in the form attached hereto as Exhibit A (including the exhibits thereto), stating that the Vendor is not an affiliate of the Company within the meaning of Rule 144 under the Securities Act (“Rule 144”);

 

4.1.9                  No common control:  the Vendor does not have a relationship of common control with the Company and there are no contractual or other relationship of control (e.g. voting agreement, rights as creditor, etc.) between the Vendor and the Company or any of its affiliates;

 

4.1.10           Not an affiliate: the Vendor is not and has not at any time within the last 12 months been an affiliate of the Company within the meaning of Rule 144;

 

4.1.11           No board representation: the Vendor does not have any representatives on or observers to the Board of the Directors of the Company or any committees of such board or rights to appoint members to the boards or such committees;

 

4.1.12           Transactions conducted at arms’ length:  the Vendor is not a creditor of the Company whose consent is required for major decisions and all business transactions between the Vendor and the Company are conducted at arms’ length;

 

4.1.13           Transfer restrictions.  The Sale Shares are not “restricted securities” within the meaning of Rule 144;

 

4.1.14           No registration.  It is not necessary in connection with the offer, sale and delivery of the Sale Shares in the manner contemplated by this Agreement to register the Sale Shares or the underlying Shares under the Securities Act; and

 

4.1.15           Lock-up.  Vendor agrees that, during the period beginning on the date hereof and ending on the date that is 60 days from the date of the Agreement, the Vendor will not, without the prior written consent of the Placing Agent, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any of the Shares or ADRs or any securities convertible into or exchangeable or exercisable for the Shares or ADRs, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of the Company’s Shares, ADRs or other securities, in cash or otherwise.  Notwithstanding the foregoing, the Vendor may, without the consent of the Placing Agent, transfer up to 2,000,000 ADRs to the Company in a transaction to be entered into between the Vendor and the Company on or about July 6, 2011.

 

5                                      INDEMNITY

 

5.1                            The Vendor undertakes to indemnify and hold harmless the Placing Agent and its respective directors, officers, employees, affiliates (as such term is defined in Rule 501(b) under the Securities Act selling agents and each person, if any, who controls the Placing Agent within the meaning of the Securities Act), or the U.S. Securities Exchange Act of 1934, as amended (the “Indemnified Parties”) against all or any costs, expenses (including legal fees as they are incurred), fees, claims, actions, liabilities, demands, proceedings or judgments (including, but not limited to, all such losses, costs, charges or expenses suffered or incurred in disputing or defending any costs, fees, claims, actions, liabilities, demands, proceedings or judgments (the “Proceedings”) and/or in establishing its rights to be indemnified pursuant to this Clause 5 and/or in seeking advice in relation to any Proceedings, as well as all losses suffered or incurred by the Indemnified Party due to any action brought or established or threatened to be brought or established against any of the Indemnified Parties by any placee or by any governmental agency, regulatory body or other person:

 

5.1.1                  directly or indirectly arising out of or in connection with any breach or alleged breach of any of the representations, warranties or undertakings contained in this Agreement;

 

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5.1.2                  which are, directly or indirectly, occasioned by or resulting from or are attributable to the performance by the Placing Agent of its obligations under this Agreement in relation to the Placing and which do not in any such case arise from the Placing Agent’s fraud, gross negligence, or wilful default as determined by final judgment of a court of competent jurisdiction; or

 

5.1.3                  in respect of any breach or alleged breach of any applicable laws or regulations of any jurisdiction resulting from the Placing which do not arise from the Placing Agent’s fraud, gross negligence, or wilful default as determined by final judgment of a court of competent jurisdiction.

 

5.2                            If the indemnification provided for in Clause 5.1 hereof is for any reason unavailable to or insufficient to hold harmless an Indemnified Party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such Indemnified Party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Vendor, on the one hand, and the Placing Agent, on the other hand, from the placing of the Sales Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Vendor, on the one hand, and of the Placing Agent, on the other hand, which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

 

5.3                            Clauses 5.1 and 5.2 shall remain in full force and effect notwithstanding completion of the Placing in accordance with their respective terms and shall be in addition to any liability which the Vendor may have. The Vendor shall not, without the prior written consent of the Placing Agent settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim, action, suit or proceeding.

 

6                                      TERMINATION

 

6.1                            Notwithstanding anything contained in this Agreement, if at any time prior to the completion of the closing on the Closing Date:

 

6.1.1                  there develops, occurs or comes into force any new law or regulation or any change or development involving a prospective change in existing laws or regulations which in the sole judgement of the Placing Agent has or is likely to have a material adverse effect on the financial position of the Group as a whole; or any significant change (whether or not permanent) in local, national or international monetary, economic, financial, political or military conditions which in the sole judgement of the Placing Agent is or would be materially adverse to the success of the Placing; or any significant change (whether or not permanent) in local, national or international securities market conditions or currency exchange rates or exchange controls which in the sole judgement of the Placing Agent is or would be materially adverse to the success of the Placing; or makes it impracticable or inadvisable or inexpedient to proceed therewith; or a general moratorium on commercial banking activities in Hong Kong, the PRC, Singapore, London or New York declared by the relevant authorities or a material disruption in commercial banking or securities settlement or clearance services in Hong Kong, the PRC, Singapore, the United Kingdom or the United States; or a change or development involving a prospective change in taxation adversely affecting the Company, the Sale Shares or the transfer thereof; or any outbreak or escalation of hostilities or act of terrorism involving Hong Kong, the PRC, Singapore, the United Kingdom or the United States or the declaration by Hong Kong, the PRC, Singapore, the United Kingdom or the United States of a national emergency or war; or any suspension of dealings in the ADRs or the Shares for any period whatsoever (other than as a result of the Placing); or any moratorium, suspension or material restriction on trading in shares or securities generally on the Shanghai Stock Exchange, the Shenzhen Stock Exchange, the Singapore Exchange Securities Trading Limited, the London Stock Exchange, the New York Stock Exchange or the Stock Exchange due to exceptional financial circumstances or otherwise at any time prior to the Closing Date; or

 

6.1.2                  any breach of any of the representations, warranties and undertakings by the Vendor set out in Clause 4 comes to the knowledge of the Placing Agent or any event occurs or any matter arises on

 

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or after the date hereof and prior to the Closing Date which if it had occurred or arisen before the date hereof would have rendered any of such representations, warranties and undertakings untrue or incorrect in any respect or there has been a breach of, or failure to perform, any other provision of this Agreement on the part of the Vendor; or

 

6.1.3                  there is any such adverse change, or development involving a prospective adverse change, in the general affairs, condition, results of operations or prospects, management, business, stockholders’ equity or in the financial or trading position of the Company or the Group as a whole which in the sole judgement of the Placing Agent is materially adverse to the success of the Placing;

 

then and in any such case, the Placing Agent may terminate this Agreement without liability to the Vendor by giving notice in writing to the Vendor.  If this Agreement is terminated pursuant to this Section 6, such termination shall be without liability of any party to any other party, provided that Sections 3, 4, 5, 7 and 8 shall survive such termination and remain in full force and effect.

 

7                                      MISCELLANEOUS

 

7.1                            This Agreement constitutes the entire agreement and understanding between the Parties in connection with the Placing. This Agreement supersedes all previous agreements or understandings which shall cease to have any further force or effect and no Party has entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set out or referred to in this Agreement.

 

8                                      APPLICABLE LAW AND JURISDICTION

 

8.1                            THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.

 

8.2                            Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan, unless any such Federal court determines that it lacks jurisdiction over a Related Proceeding in which case such Related Proceeding shall be instituted in the courts of the State of New York, in each case located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court.  The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.  The Vendor irrevocably appoints CT Corporation System as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the City and County of New York. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.

 

IN WITNESS WHEREOF this Agreement has been entered into the day and year first before written.

 

[SIGNATURE PAGES FOLLOW]

 

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SIGNED by
for and on behalf of		/s/ Guo Guangchang
FOSUN INTERNATIONAL LIMITED

 

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SIGNED by
for and on behalf of		Peter Chapman
MERRILL LYNCH, PIERCE, FENNER & SMITH INCOPRORATED		by:	/s/ Jason Cox
			Jason Cox

 

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