UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
BONA FILM
GROUP LIMITED
(Name of Issuer)
ORDINARY SHARES
(Title
of Class of Securities)
09777B107
(CUSIP Number)
c/o Nan
Peng Shen
Suite 3613, 36/F, Two Pacific Place
88 Queensway Road, Hong Kong
(852) 2501 8989
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications)
with copies to:
Craig Marcus
Ropes & Gray LLP
800
Boylston Street
Boston, Massachusetts 02199
(617) 951-7802
December
15, 2015
(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 of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for
other parties to whom copies are to be sent.
* |
The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page
shall not be deemed to be filed for the purpose of section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
SCHEDULE 13D/A
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CUSIP No. 09777B107 |
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Page
2
of 15 |
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1. |
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Names of
reporting persons. I.R.S. Identification Nos. of above persons (entities only)
SEQUOIA CAPITAL CHINA I, L.P. IRS Identification No.
20-3514012 |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) x |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization Cayman Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
0 |
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8. |
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Shared voting power
1,296,678 |
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9. |
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Sole dispositive power
0 |
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10. |
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Shared dispositive power
1,296,678 |
11. |
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Aggregate amount beneficially owned by each reporting person
1,296,678 |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
13. |
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Percent of class represented by amount
in Row (11) 4.0%(1) |
14. |
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Type of reporting person (see
instructions) PN |
(1) |
Relying on information provided by the Issuer in its 6K filed on November 25, 2015, this percentage is calculated based on 32,042,346 Ordinary Shares outstanding on September 30, 2015. |
SCHEDULE 13D/A
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CUSIP No. 09777B107 |
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Page
3
of 15 |
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1. |
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Names of
reporting persons. I.R.S. Identification Nos. of above persons (entities only)
SEQUOIA CAPITAL CHINA PARTNERS FUND I, L.P. I.R.S. IDENTIFICATION
NO. OF ABOVE PERSONS (ENTITIES ONLY) 20-4387549 |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) x |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization Cayman Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
0 |
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8. |
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Shared voting power
148,993 |
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9. |
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Sole dispositive power
0 |
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10. |
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Shared dispositive power
148,993 |
11. |
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Aggregate amount beneficially owned by each reporting person
148,993 |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
13. |
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Percent of class represented by amount
in Row (11) 0.5%(1) |
14. |
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Type of reporting person (see
instructions) PN |
(1) |
Relying on information provided by the Issuer in its 6K filed on November 25, 2015, this percentage is calculated based on 32,042,346 Ordinary Shares outstanding on September 30, 2015. |
SCHEDULE 13D/A
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CUSIP No. 09777B107 |
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Page
4
of 15 |
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1. |
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Names of
reporting persons. I.R.S. Identification Nos. of above persons (entities only)
SEQUOIA CAPITAL CHINA PRINCIPALS FUND I, L.P. I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY) 20-4887879 |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) x |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization Cayman Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
0 |
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8. |
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Shared voting power
200,691 |
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9. |
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Sole dispositive power
0 |
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10. |
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Shared dispositive power
200,691 |
11. |
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Aggregate amount beneficially owned by each reporting person
200,691 |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
13. |
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Percent of class represented by amount
in Row (11) 0.6%(1) |
14. |
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Type of reporting person (see
instructions) PN |
(1) |
Relying on information provided by the Issuer in its 6K filed on November 25, 2015, this percentage is calculated based on 32,042,346 Ordinary Shares outstanding on September 30, 2015. |
SCHEDULE 13D/A
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CUSIP No. 09777B107 |
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Page
5
of 15 |
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1. |
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Names of
reporting persons. I.R.S. Identification Nos. of above persons (entities only)
SEQUOIA CAPITAL CHINA MANAGEMENT I, L.P. I.R.S. IDENTIFICATION
NO. OF ABOVE PERSONS (ENTITIES ONLY) 20-3348112 |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) x |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization Cayman Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
0 |
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8. |
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Shared voting power
1,646,362 |
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9. |
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Sole dispositive power
0 |
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10. |
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Shared dispositive power
1,646,362 |
11. |
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Aggregate amount beneficially owned by each reporting person
1,646,362 |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
13. |
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Percent of class represented by amount
in Row (11) 5.1%(1) |
14. |
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Type of reporting person (see
instructions) PN |
(1) |
Relying on information provided by the Issuer in its 6K filed on November 25, 2015, this percentage is calculated based on 32,042,346 Ordinary Shares outstanding on September 30, 2015. |
SCHEDULE 13D/A
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CUSIP No. 09777B107 |
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Page
6
of 15 |
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1. |
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Names of
reporting persons. I.R.S. Identification Nos. of above persons (entities only) SC
CHINA HOLDING LIMITED I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
N/A |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) x |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization Cayman Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
0 |
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8. |
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Shared voting power
1,646,362 |
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9. |
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Sole dispositive power
0 |
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10. |
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Shared dispositive power
1,646,362 |
11. |
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Aggregate amount beneficially owned by each reporting person
1,646,362 |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
13. |
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Percent of class represented by amount
in Row (11) 5.1%(1) |
14. |
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Type of reporting person (see
instructions) OO |
(1) |
Relying on information provided by the Issuer in its 6K filed on November 25, 2015, this percentage is calculated based on 32,042,346 Ordinary Shares outstanding on September 30, 2015. |
SCHEDULE 13D/A
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CUSIP No. 09777B107 |
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Page
7
of 15 |
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1. |
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Names of
reporting persons. I.R.S. Identification Nos. of above persons (entities only) SNP
CHINA ENTERPRISES LIMITED I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY)
N/A |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) x |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization British Virgin Islands |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
0 |
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8. |
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Shared voting power
1,646,362 |
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9. |
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Sole dispositive power
0 |
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10. |
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Shared dispositive power
1,646,362 |
11. |
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Aggregate amount beneficially owned by each reporting person
1,646,362 |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
13. |
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Percent of class represented by amount
in Row (11) 5.1%(1) |
14. |
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Type of reporting person (see
instructions) OO |
(1) |
Relying on information provided by the Issuer in its 6K filed on November 25, 2015, this percentage is calculated based on 32,042,346 Ordinary Shares outstanding on September 30, 2015. |
SCHEDULE 13D/A
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CUSIP No. 09777B107 |
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Page
8
of 15 |
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1. |
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Names of
reporting persons. I.R.S. Identification Nos. of above persons (entities only) NAN
PENG SHEN I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (ENTITIES ONLY) |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) x |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization HONG KONG SAR |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
0 |
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8. |
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Shared voting power
1,646,362 |
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9. |
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Sole dispositive power
0 |
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10. |
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Shared dispositive power
1,646,362 |
11. |
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Aggregate amount beneficially owned by each reporting person
1,646,362 |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) ¨ |
13. |
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Percent of class represented by amount
in Row (11) 5.1%(1) |
14. |
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Type of reporting person (see
instructions) IN |
(1) |
Relying on information provided by the Issuer in its 6K filed on November 25, 2015, this percentage is calculated based on 32,042,346 Ordinary Shares outstanding on September 30, 2015. |
PREAMBLE
This Statement on Schedule 13D/A (this Schedule 13D/A) amends the previous Schedule 13D filed on June 19, 2015 (the
Original 13D) by Sequoia Capital China I, L.P. (SCC I), Sequoia Capital China Partners Fund I, L.P. (SCC PTRS I), Sequoia Capital China Principals Fund I, L.P. (SCC PRIN I), Sequoia Capital China
Management I, L.P. (SCC MGMT I), SC China Holding Limited (SCC HOLD), SNP China Enterprises Limited (SNP) and Nan Peng Shen (NS) (collectively, the Reporting Persons) relating to ordinary
shares of Bona Film Group Limited (the Issuer). Except as amended and restated herein, the information set forth in the Original 13D remains unchanged. Capitalized terms used herein without definition have meanings assigned thereto in
the Original 13D.
ITEM 3. |
SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. |
Item 3 of the Original 13D is hereby amended
and restated as follows:
The information set forth in or incorporated by reference in Items 2, 4 and 5 of this statement is incorporated by reference in
its entirety into this Item 3.
The aggregate number of Ordinary Shares beneficially owned by the Reporting Persons is 1,646,362, all of which were
issued upon conversion of certain preferred shares of the Issuer purchased prior to the Issuers initial public offering, as described below. The source of the funds used to purchase the preferred shares of the Issuer was capital contributions
by the partners of such Reporting Persons and the available funds of such entities.
In July 2007, pursuant to a Subscription Agreement dated
July 10, 2007, (i) SCC I purchased 196,900 series A preferred shares for an aggregate consideration of $3,150,400; (ii) SCC PTRS I purchased 22,625 series A preferred shares for an aggregate consideration of $362,000; and
(iii) SCC PRIN I purchased 30,475 series A preferred shares for an aggregate consideration of $487,600.
In 2009, pursuant to a Subscription Letter,
and further pursuant to that certain Secured Convertible Note and Warrant Purchase Agreement dated June 15, 2007, (i) SCC I exercised its warrant to purchase 2,127 series A preferred shares; (ii) SCC PTRS I exercised its warrant to
purchase 244 series A preferred shares; and (iii) SCC PRIN I exercised its warrant to purchase 329 series A preferred shares.
The Issuer effected a
1:100 share split in 2010, resulting in the 252,700 aggregate series A preferred shares being split into 25,270,000 aggregate series A preferred shares. Additionally, the Issuer effected a 16:1 reverse share split in 2010, resulting in the
25,270,000 series A preferred shares being converted into 1,579,375 series A preferred shares. All of the series A preferred shares were converted, in connection with the closing of the Issuers initial public offering, into an aggregate of
2,909,380 Ordinary Shares on the basis of 1.8421 ordinary shares for each series A preferred share.
In July 2009, pursuant to a Series B Preferred Share
Subscription Agreement dated July 7, 2009, (i) SCC I purchased 11,179 series B-1 subscribed shares for an aggregate consideration of $196,900; (ii) SCC PTRS I purchased 1,285 series B-1 subscribed shares for an aggregate consideration
of $22,625; and (iii) SCC PRIN I purchased 1,730 series B-1 subscribed shares for an aggregate consideration of $30,475. Additionally, (i) SCC I purchased 8,695 series B-2 subscribed shares for an aggregate consideration of $196,900;
(ii) SCC PTRS I purchased 999 series B-2 subscribed shares for an aggregate consideration of $22,625; and (iii) SCC PRIN I purchased 1,346 series B-2 subscribed shares for an aggregate consideration of $30,475. The Issuer effected a 1:100
share split in 2010, resulting in an aggregate of 25,234 series B preferred shares being split into 2,523,400 aggregate series B preferred shares.
In June 2010, pursuant to a Share Subscription Agreement dated June 28, 2010, (i) SCC I purchased
998,902 series B-3 subscribed shares for an aggregate consideration of $393,800; (ii) SCC PTRS I purchased 114,780 series B-3 subscribed shares for an aggregate consideration of $45,250; and (iii) SCC PRIN I purchased 154,604 series B-3
subscribed shares for an aggregate consideration of $60,950.
The Issuer effected a 16:1 reverse share split in 2010, resulting in the aggregate 3,791,686
series B preferred shares being converted into an aggregate of 236,982 series B preferred shares. All of the series B preferred shares were converted, in connection with the closing of the Issuers initial public offering, into an aggregate of
236,982 Ordinary Shares on the basis of one ordinary share for each series B preferred share.
In May 2012, pursuant to a Securities Transfer Agreement
dated May 11, 2012, SCC I , SCC PTRS I and SCC PRIN I sold an aggregate of 1,500,000 ordinary shares to Skillgreat Limited for an aggregate consideration of $17,100,000.
Pursuant to the Merger Agreement (as defined below), Merger Sub (as defined below) will be merged with and into the Issuer, with the Issuer surviving the
Merger (as defined below) and becoming a wholly-owned subsidiary of Parent (as defined below) as a result of the Merger. The descriptions of the Merger and the Merger Agreement set forth in Item 4 below are incorporated by reference in their
entirety into this Item 3. The information disclosed in this paragraph is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 8, and in incorporated herein by reference in its entirety.
It is anticipated that, at a price of US$13.70 in cash per ADS (each two representing one Ordinary Share) or US$27.40 in cash per Ordinary Share,
approximately US$366 million will be expended in acquiring all the outstanding Ordinary Shares owned by shareholders of the Issuer other than the Rollover Shareholders (as defined below) in connection with the Merger. Pursuant to the Equity
Commitment Letters (as defined below), the Merger will be financed with cash contributions in Parent from each of the Equity Investors (as defined below) or their affiliates.
ITEM 4. |
PURPOSE OF TRANSACTION. |
Item 4 of the Original 13D is hereby amended and restated as follows:
On June 12, 2015, Mr. Dong Yu, and certain of his affiliated entities (collectively, the Chairman Parties), Fosun International Limited,
Fosun International Holdings Ltd., Orrick Investments Limited, Peak Reinsurance Company Limited and Fidelidade Companhia Seguros S.A. (collectively, Fosun Entities) and SCC I, SCC PTRS I and SCC PRIN I (collectively, the Sequoia
Funds and together with the Fosun Entities and the Chairman Parties, the Consortium) submitted a preliminary, non-binding letter (the Proposal Letter) to the Board of Directors of the Issuer (the Board). In
the Proposal Letter, the Consortium outlined its proposal (Proposal) for the Transaction (as defined below). Under the Proposal, members of the Consortium propose to acquire, through an acquisition vehicle to be formed by them, all of
the outstanding share capital of the Issuer (other than the Shareholder Shares (as defined below), which will be rolled over in connection with the Transaction, and any other shares that will be rolled over in connection with the Transaction) for
US$13.70 in cash per American Depositary Share of the Issuer (ADS, with each two ADSs representing one Ordinary Share), or US$27.40 in cash per Ordinary Share, as the case may be. In the Proposal Letter, the Consortium stated that it has
held discussions with financial institutions that have expressed interests in providing financing in connection with the Transaction. The Proposal also provides that, among other things, (a) the Consortiums financing providers will need
to conduct customary legal, financial and accounting due diligence on the Issuer, and (b) the Consortium will negotiate with the Issuer to agree on, and enter into, definitive agreements with respect to the Transaction.
The Proposal is subject to a number of conditions, including, among other things, the negotiation and execution of a definitive agreement and other related
agreements mutually acceptable in form and substance to the Issuer and the
Consortium. Neither the Issuer nor any member of the Consortium is obligated to complete the Transaction, and a binding commitment with respect to the Transaction will result only from the
execution of definitive documents, and then will be on the terms provided in such documentation.
On June 12, 2015, in connection with the Proposal,
the Chairman Parties entered into a consortium agreement (the Consortium Agreement) with the Fosun Entities and the Sequoia Funds, pursuant to which the Consortium agreed to cooperate in good faith in connection with the Proposal to
acquire all of the outstanding share capital of the Issuer, through a going-private transaction (the Transaction), other than those shares beneficially owned by the members of the Consortium (the Shareholder Shares) or that
will be rolled over by other shareholders in connection with the Transaction. The Consortium Agreement provides, among other things, for coordination in (a) the evaluation of the Issuer, including conducting due diligence of the Issuer and its
business, (b) discussions regarding the Proposal with the Issuer, and (c) the negotiation of the terms of definitive documentation in connection with the Proposal. The Consortium Agreement also requires the Reporting Persons, for a period
beginning on the effective date of the Consortium Agreement and ending on the 9-month anniversary of such date, not to (i) make a competing proposal that involves the direct or indirect acquisition of 10% or more of the Issuers Ordinary
Shares, a sale of all or any significant amount of the assets of the Issuer, a restructuring or recapitalization of the Issuer, or some other transaction that could adversely affect, prevent or materially reduce the likelihood of the consummation of
the Transaction or (ii) acquire or dispose of any shares, warrants, options or other securities which are convertible into or exercisable for shares in the Issuer, other than through the Transaction.
On December 15, 2015, the Issuer entered into an agreement and plan of merger (the Merger Agreement) with Mountain Tiger International
Limited, a Cayman Islands company (Parent) and Mountain Tiger Limited, a Cayman Islands company and a wholly-owned subsidiary of Parent (Merger Sub). Pursuant to the Merger Agreement, Merger Sub will be merged with and into
the Issuer (the Merger), with the Issuer surviving the Merger and becoming a wholly-owned subsidiary of Parent as a result of the Merger. At the effective time of the Merger (the Effective Time), each Ordinary Share
(including Ordinary Shares represented by ADSs) issued and outstanding immediately prior to the Effective Time, other than (a) the Ordinary Shares owned by Parent, Merger Sub or the Issuer (as treasury, if any), or by any direct or indirect
wholly-owned subsidiary of Parent, Merger Sub or the Issuer, (b) the Ordinary Shares reserved (but not yet allocated) by the Issuer for settlement upon exercise or vesting of stock options or restricted shares of the Issure, (c) the
Ordinary Shares owned by shareholders who have validly exercised and have not effectively withdrawn or lost their dissenter rights under the Companies Law of the Cayman Islands (the Dissenting Shares), and (d) the Ordinary Shares
(the Rollover Shares, including the Ordinary Shares issuable under stock options and restricted shares and the Ordinary Shares represented by ADSs) beneficially owned by Mr. Dong Yu and certain of his affiliated entities, Fosun
International Limited, Orrick Investments Limited, the Sequoia Funds, SAIF Partners IV L.P. (collectively, the Rollover Shareholders) and Uranus Connection Limited (Uranus) (Ordinary Shares described under (a) through
(d) above are collectively referred to herein as the Excluded Shares), will be cancelled in exchange for the right to receive US$27.40 in cash per Ordinary Share without interest and net of any applicable withholding taxes. The
Excluded Shares other than Dissenting Shares will be cancelled for no consideration. The Dissenting Shares will be cancelled for their fair value determined in accordance with the Companies Law of the Cayman Islands. The Merger is subject to the
approval of the Issuers shareholders and various other closing conditions.
Concurrently with the execution of the Merger Agreement, each of
Mr. Dong Yu, Uranus, Sac Finance Company Limited, Willow Investment Limited and All Gain Ventures Limited (collectively Equity Investors and together with the Rollover Shareholders, the Investors) entered into an interim
investors agreement with Parent, Merger Sub and the Rollover Shareholders (the Investors Agreement), which would be deemed to terminate and supersede the Consortium Agreement upon execution and governs the actions of Parent and Merger
Sub and the relationship among the Investors with respect to the Transaction.
Concurrently with the execution of the Merger Agreement, the Rollover
Shareholders, Uranus and Parent entered into a support agreement (the Support Agreement), pursuant to which the Rollover Shareholders and Uranus agreed, among other things, that (i) each of them will vote the Rollover Shares in
favor of the authorization and approval of the Merger Agreement and the transactions contemplated thereunder, including the Merger, and (ii) the Rollover Shares will be cancelled without payment of any consideration or distribution therefor at
the Effective Time.
Concurrently with the execution of the Merger Agreement, each of the Equity Investors (or through their
respective affiliates, as the case may be) entered into an equity commitment letter (collectively, the Equity Commitment Letters) with Parent, pursuant to which each Equity Investor (or through their respective affiliates, as the case
may be) undertook to fund the transactions contemplated under the Merger Agreement through cash contributions in Parent from each of them or their affiliates.
Concurrently with the execution of the Merger Agreement, each of the Equity Investors (or through their respective affiliates, as the case may be) entered
into a limited guarantee (each a Limited Guarantee) in favor of the Issuer with respect to, among other things, a portion of the payment obligations of Parent corresponding to the cash contributions committed by each Equity Investor as
set out in their respective Equity Commitment Letters.
References to each of the Consortium Agreement, the Merger Agreement, the Investors Agreement, the
Support Agreement, the Equity Commitment Letter and the Limited Guarantees in this Schedule 13D/A are qualified in their entirety by reference to such above-mentioned documents, as applicable, which are attached hereto as exhibits and incorporated
herein by reference as if set forth in their entirety herein.
If the Transaction is completed, the ADSs would be delisted from the NASDAQ Select Global
Market, and the Issuers obligation to file periodic reports under the Securities Exchange Act of 1934, as amended, would terminate. In addition, consummation of the Transaction could result in one or more of the actions specified in clauses
(a)-(j) of Item 4 of Schedule 13D, including the acquisition or disposition of securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, a change to the Board (as the surviving company in the merger), and
a change in the Issuers memorandum and articles of association to reflect that the Issuer would become a privately held company.
ITEM 6. |
CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. |
Item 6 of the Original 13D is hereby amended and restated as follows:
The information set forth and/or incorporated by reference in Items 3, 4 and 7 is hereby incorporated by reference into this Item 6.
To the best knowledge of the Reporting Persons, except as set forth herein, there are no contracts, arrangements, understandings or relationships (legal or
otherwise), including, but not limited to, transfer or voting of any of the securities, finders 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, between the persons enumerated in Item 2, and any other person, with respect to any securities of the Issuer, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person
voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.
ITEM 7. |
MATERIAL TO BE FILED AS EXHIBITS. |
Item 7 of the Original 13D is hereby amended and restated as
follows:
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Exhibit |
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Description |
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1 |
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Joint Filing Agreement dated as of February 12, 2013, by and among SCC MGMT I, SCC I, SCC PTRS I, SCC PRIN I, SCC HOLD, SNP and NS (previously filed with the Commission as Exhibit 1 to Schedule 13G filed by the Reporting Persons on
February 12, 2013). |
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2 |
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Consortium Agreement, dated as of June 12, 2015, by and among the Chairman Parties (as defined therein), the Fosun Entities (as defined therein) and the Sequoia Entities (as defined therein) (incorporated by reference to
Exhibit 2 to the Schedule 13D filed on June 19, 2015 with the Securities and Exchange Commission). |
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3 |
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Proposal Letter to the Issuer from the Consortium Members (as defined therein), dated June 12, 2015 (incorporated by reference to Exhibit 3 to the Schedule 13D filed on June 19, 2015 with the Securities and Exchange
Commission). |
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4 |
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Subscription Agreement, dated as of July 10, 2007, by and among Tyner Group Limited, Beijing Bona New World Media Technology Co., Ltd., Beijing Polybona Film Distribution Co., Ltd., Beijing Bona Film Culture Communication Co., Ltd.,
Beijing Bona Advertising Co., Ltd., Yu Dong, Yu Hai, SIG China Investments One, Ltd., SCC I, SCC PTRS I and SCC PRIN I (incorporated by reference to Exhibit 4.4 to the Form F-1 filed on November 17, 2010 with the Securities and Exchange
Commission). |
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5 |
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Bona International Film Group Limited Series B Preferred Share Subscription Agreement, dated as of July 7, 2009, by and among Bona International Film Group Limited, Beijing Bona New World Media Technology Co., Ltd., Beijing Polybona
Film Distribution Co., Ltd., Beijing Bona Film Culture Communication Co., Ltd., Beijing Bona Advertising Co., Ltd., Beijing Bona Mei Tao Culture Media Co., Ltd., Zhejiang Bona Movie and Television Production Co., Ltd., Yu Dong, Yu Hai, Shi Nansun,
Huang Hsin-Mao, Bona Entertainment Company Limited, Distribution Workshop (BVI) Ltd., Matrix Partners China I, L.P., Matrix Partners China I-A, L.P., SCC I, SCC PTRS I, SCC PRIN I, SINA Hong Kong Limited, Zero2IPO China Fund II, L.P. and Wayford
Enterprises Limited (incorporated by reference to Exhibit 4.5 to the Form F-1 filed on November 17, 2010 with the Securities and Exchange Commission). |
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6 |
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Bona International Film Group Limited Share Subscription Agreement, dated as of June 28, 2010, by and among Bona International Film Group Limited, Beijing Bona New World Media Technology Co., Ltd., Beijing Baichuan Film Distribution
Co., Ltd., Beijing Bona Film Culture Communication Co., Ltd., Beijing Bona Advertising Co., Ltd., Beijing Bona Mei Tao Culture Media Co., Ltd., Zhejiang Bona Movie and Television Production Co., Ltd., Bona Entertainment Company Limited, Distribution
Workshop (BVI) Ltd., Yu Dong, Yu Hai, Blooming Capital Limited, Matrix Partners China I, L.P., Matrix Partners China I-A, L.P., SCC I, SCC PTRS I, SCC PRIN I, SIG China Investments One, Ltd., Zero2IPO China Fund II, L.P., Wayford Enterprises Limited
and Jeffrey Chan (incorporated by reference to Exhibit 4.6 to the Form F-1 filed on November 17, 2010 with the Securities and Exchange Commission). |
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7 |
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Secured Convertible Note and Warrant Purchase Agreement, dated June 15, 2007, by and among Tyner Group Limited, Ms. SHI, Nan Sun and Mr. YU, Dong, and SCC I, SCC PTRS I and SCC PRIN I (incorporated by reference to Exhibit 7 to the
Schedule 13D filed on June 19, 2015 with the Securities and Exchange Commission). |
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8 |
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Agreement and Plan of Merger, dated as of December 15, 2015, by and among Parent, Merger Sub and the Issuer (incorporated by reference to Exhibit 99.2 to the Form 6-K filed by the Issuer on December 15, 2015 with the Securities and
Exchange Commission). |
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9 |
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Interim Investors Agreement, dated as of December 15, 2015, by and among Parent, Merger Sub, the Equity Investors (as defined therein) and the Rollover Investors (as defined therein). |
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10 |
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Support Agreement, dated as of December 15, 2015, by and among Parent and the Rollover Securityholders (as defined therein). |
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11 |
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Equity Commitment Letter, dated December 15, 2015, by and between Parent and Uranus. |
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12 |
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Equity Commitment Letter, dated December 15, 2015, by and between Parent and Alibaba Pictures Group Limited. |
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13 |
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Equity Commitment Letter, dated December 15, 2015, by and between Parent and Mr. YU, Dong |
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14 |
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Equity Commitment Letter, dated December 15, 2015, by and between Parent and Oriental Power Holdings Limited. |
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15 |
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Equity Commitment Letter, dated December 15, 2015, by and between Parent and Mr. XIE, Zhanshan. |
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16 |
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Limited Guarantee, dated December 15, 2015, by Uranus in favor of the Issuer |
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17 |
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Limited Guarantee, dated December 15, 2015, by Alibaba Pictures in favor of the Issuer |
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18 |
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Limited Guarantee, dated December 15, 2015, by Mr. YU, Dong in favor of the Issuer |
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19 |
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Limited Guarantee, dated December 15, 2015, by Oriental Power Holdings Limited in favor of the Issuer |
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20 |
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Limited Guarantee, dated December 15, 2015, by Mr. XIE, Zhanshan in favor of the Issuer. |
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this
Statement is true, complete and correct.
Dated: December 18, 2015
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Sequoia Capital China I, L.P. |
Sequoia Capital China Partners Fund I, L.P. |
Sequoia Capital China Principals Fund I, L.P. |
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By: Sequoia Capital China Management I, L.P.,
a Cayman Islands exempted limited partnership General Partner of
Each |
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By: SC China Holding Limited, a Cayman Islands limited liability company |
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Its General Partner |
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By: |
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/s/ Nan Peng Shen |
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Nan Peng Shen |
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Sequoia Capital China Management I, L.P.,
a Cayman Islands exempted limited partnership |
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By: SC China Holding Limited, a Cayman Islands limited liability company |
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Its General Partner |
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By: |
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/s/ Nan Peng Shen |
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Nan Peng Shen |
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SC China Holding Limited, a Cayman Islands limited liability company |
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By: |
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/s/ Nan Peng Shen |
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Nan Peng Shen |
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SNP China Enterprises Limited |
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By: |
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/s/ Nan Peng Shen |
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Nan Peng Shen, Owner and Director |
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/s/ Nan Peng Shen |
Nan Peng Shen |
Exhibit 9
Execution Version
INTERIM
INVESTORS AGREEMENT
This Interim Investors Agreement (the Agreement) is made as of December 15, 2015 by
and among Mountain Tiger International Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands (Parent), Mountain Tiger Limited, an exempted company with limited liability incorporated
under the Laws of the Cayman Islands and wholly-owned subsidiary of Parent (Merger Sub), the Equity Investors (as defined below) and the Rollover Investors (as defined below). Capitalized terms used herein but not defined shall
have the meanings given to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, on the date hereof, Bona Film Group Limited, an exempted company with limited liability incorporated under the Laws of the Cayman
Islands (the Company), Parent and Merger Sub, executed an Agreement and Plan of Merger (the Merger Agreement) pursuant to which Merger Sub will be merged with and into the Company (the Merger)
with the Company surviving the Merger and becoming a wholly-owned subsidiary of Parent as a result of the Merger;
WHEREAS, on the date
hereof, each of the parties listed on the signature pages hereto as an Equity Investor (collectively, the Equity Investors) or its/his Affiliate (as the case may be) executed a letter agreement in favor of Parent
(each, an Equity Commitment Letter and collectively, the Equity Commitment Letters), pursuant to which each of the Equity Investors or its/his Affiliate (as the case may be) has agreed, subject to the terms and
conditions set forth therein, to make an equity investment (each, an Equity Commitment, and collectively, the Equity Commitments) in Parent, immediately prior to the Closing in connection with the Merger;
WHEREAS, on the date hereof, each of the parties listed on the signature pages hereto as a Rollover Investor (collectively, the
Rollover Investors, and together with the Equity Investors, the Investors) executed a support agreement in favor of Parent (the Support Agreement), pursuant to which, each of the Rollover
Investors has agreed to, subject to the terms and conditions set forth therein and among other obligations, (i) the cancellation of the Rollover Securities (as defined in the Support Agreement) held by such Rollover Investor for no
consideration in the Merger (the cash-out value of such Rollover Securities in the Merger if such Rollover Securities had not been designated as Rollover Securities and had been cashed out in accordance with the terms of the Merger Agreement, each a
Rollover Commitment, and the aggregate Rollover Commitments and Equity Commitments, collectively the Commitments), (ii) subscribe for newly issued shares of Parent at par value immediately prior to the
Closing in accordance with the Support Agreement, and (iii) vote in favor of authorization and approval of the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger (the transactions contemplated under
the foregoing three paragraphs of the recitals,
collectively, the Transaction); for the avoidance of doubt, the number of Parent Shares issuable to Rollover Investors in exchange for the cancellation of their Rollover
Securities (other than Rollover Securities that are Company Options, which shall be treated in the manner provided in the Support Agreement as in effect as of the date hereof) shall be based on the same price per Parent Share as the Equity
Investors;
WHEREAS, on the date hereof, each of the Guarantors executed a limited guarantee in favor of the Company with respect to
certain obligations of Parent under the Merger Agreement (each a Limited Guarantee and collectively, the Limited Guarantees); and
WHEREAS, the Investors, Parent and Merger Sub wish to agree to certain terms and conditions that will govern the actions of Parent and Merger
Sub and the relationship among the Investors with respect to the Merger Agreement, the Equity Commitment Letters, the Support Agreement and the Limited Guarantees, and the transactions contemplated by each.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth, the parties hereto hereby
agree as follows:
AGREEMENT
1 |
AGREEMENTS AMONG THE INVESTORS. |
1.1 |
Actions Under the Merger Agreement. Subject to Section 1.7 hereof, the Requisite Investors (as defined below) may cause Parent to
take any action or refrain from taking any action in order for Parent to comply with its obligations, satisfy its closing conditions or exercise its rights under the Merger Agreement, including, without limitation, determining that the conditions to
closing specified in Sections 7.1, 7.2 and 7.3 of the Merger Agreement (the Closing Conditions) have been satisfied, waiving compliance with any agreement or condition in the Merger Agreement (including any Closing Condition),
amending or modifying the Merger Agreement and determining to close the Merger; provided that the Requisite Investors may not cause Parent to amend the Merger Agreement in a way that has an impact on any Investor that is different from the
impact on the other Investors in a manner that is materially adverse to such Investor without such Investors written consent. Parent shall not, and the Investors shall not permit Parent or Merger Sub to, determine that the Closing Conditions
have been satisfied, waive compliance with any agreement or condition in the Merger Agreement (including any Closing Condition), amend or modify the Merger Agreement or determine to close the Merger unless such action has been approved in advance in
writing by the Requisite Investors. Parent agrees not to take any action with respect to the Merger Agreement, including granting or withholding of waivers and entering into amendments, unless such actions are in accordance with this Agreement. For
the purposes of this Agreement, Requisite Investors shall mean the Investors representing at least seventy-five percent (75%) of the aggregate Commitments, as determined without taking into account (i) any Failing
Investor (as defined below) and (ii) Rollover Commitments related to Company |
2
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Share Awards. Notwithstanding any provision of this Agreement to the contrary, from and after the time an Investor becomes a Failing Investor (as defined below), the approval or consent of such
Failing Investor shall not be required for any purposes under this Agreement; provided that any Failing Investor that ultimately participates in the Merger as a result of the Closing Investors (as defined below) exercising their rights to
seek specific performance hereunder or the Company exercising its specific performance right under the Merger Agreement shall no longer be deemed a Failing Investor, and its/his approval or consent rights shall be restored as of the date
such previously Failing Investor funds its/his Commitment. |
1.2 Equity Financing. Subject to Section 1.7
hereof, Parent shall, at the direction of the Requisite Investors, enforce the provisions of the Equity Commitment Letters in accordance with the terms of the Merger Agreement and the Equity Commitment Letters. Each Equity Investor or its/his
Affiliate shall comply with its/his obligations under its/his applicable Equity Commitment Letter. Notwithstanding anything in any Equity Commitment Letter to the contrary, prior to the Effective Time, none of the Equity Investors (or their
respective Affiliates that executed the Equity Commitment Letters) shall be entitled to assign, sell-down or syndicate any part of its/his Equity Commitment to any third party without the prior written consent of the Requisite Investors. For the
avoidance of doubt, each Equity Investor (or its/his Affiliate that executed the Equity Commitment Letters) may assign, sell-down or syndicate all or any part of its/his Equity Commitment to any of the Affiliates of such Equity Investor. Each Equity
Investor shall, in exchange for its/his or its/his Affiliates Equity Commitment, receive the same class of Parent equity securities (or, if applicable, the same combination of classes in the same proportion) as each other Investor and each
such Parent equity security shall be valued at the same price for each Investor.
1.3 Support Agreement. Subject to
Section 1.7 hereof, Parent shall, at the direction of the Requisite Investors, enforce the provisions of the Support Agreement in accordance with the terms of the Merger Agreement and the Support Agreement. Each Rollover Investor shall
comply with its/his obligations under the Support Agreement.
1.4 Management Arrangements. Subject to Section 1.7
hereof, Parent shall, at the direction of the Requisite Investors, negotiate and cause to be entered into definitive agreements with members of management of the Company with respect to the terms of managements employment, compensation,
rollover equity and equity incentives.
1.5 Shareholders Agreement. Subject to Section 1.7 hereof, Parent and each
Investor agree to negotiate in good faith with respect to the terms and conditions of, and enter into substantially concurrently with the Effective Time, a shareholders agreement or other definitive agreements, which shall contain mutually agreeable
terms among the Investors and Parent, including, among others, provisions to the effect that (i) a shareholder of Parent shall be permitted to freely transfer its/his equity securities of Parent to any of its/his Affiliates, and
(ii) whenever a shareholder of Parent is entitled or required to subscribe for, purchase or receive (whether through transfer, distribution or otherwise) any equity securities of Parent, any of its Subsidiaries or any other Person pursuant to
such shareholders agreement or other definitive agreements, such shareholder may, at its/his sole discretion, designate an Affiliate to subscribe for, purchase or receive such equity securities or transfer such equity securities to its/his Affiliate
3
after such shareholder has subscribed for, purchased or received such securities; provided that, in each case, such Affiliate shall agree to be subject to the same terms, conditions and
restrictions as applicable to the transferring or designating shareholder.
1.6 Consummation of the Transaction. In the event that
the Requisite Investors determine to close the Merger in accordance with the terms of the Merger Agreement, the Requisite Investors may terminate the participation in the Transaction of any Failing Investor (as defined below); provided that
such termination shall not affect the rights of the Closing Investors (as defined below) against such Failing Investor with respect to such failure to fund, which rights shall be provided in Sections 2.4 and 2.5 hereof. In the event
the Failing Investors participation in the Transaction is terminated pursuant to this Section 1.6, the amount of the Failing Investors Commitment shall first be offered to the Investors (other than (i) any Failing
Investor and (ii) any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to Section 1.7) in proportion of their respective Commitments to the aggregate Commitments of the Investors (other than any
Failing Investor and any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to Section 1.7) at the time of such termination, and if none or not all of the Failing Investors Commitment is accepted
by the Investors (other than any Failing Investor and any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to Section 1.7) in such proportion, then the Requisite Investors may offer the Failing
Investors Commitment, or the applicable portion thereof, to all the Investors (other than any Failing Investor and any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to Section 1.7) and/or one
or more new investors approved by the Requisite Investors.
1.7 Non-Consenting Investors. Notwithstanding anything to the contrary
in this Agreement, Parent shall not, and the Requisite Investors shall not permit Parent to (i) modify or amend the Merger Agreement so as to increase or modify in a manner adverse to Parent or any Investor the amount or form of the
consideration with respect to the Merger (including by waiver of a breach of the Companys representation and warranty regarding its capitalization) or increase in any way the obligations under the Limited Guarantees or the Equity Commitment
Letters, (ii) modify or waive, in a manner adverse to Parent or any Investor, any provisions relating to the Parent Termination Fee or the aggregate cap on monetary damages available to the Company or (iii) modify the structure of the
transaction contemplated by the Merger Agreement (including the Merger), in each case, without the prior written consent of each Investor (the signature of an Investor on the written instrument with respect to such modification, amendment or waiver
being due evidence for all purpose of such prior written consent); provided that in the event that the Requisite Investors are willing to agree to, proceed with, or take any action or enter into any agreement (or, in each such case, to permit
Parent to do so) with respect to the matters described in clauses (i) through (iii) above and any one Investor declines to agree to, proceed with, or take any action with respect to such matter (a Non-Consenting
Investor), the Requisite Investors may nevertheless proceed with such matter by first terminating such Non-Consenting Investors participation in the Transaction, and in such event such Non-Consenting Investor shall have no rights or
liability hereunder (except as specifically provided in Section 1.9 hereof) or, if applicable, under its/his Equity Commitment Letter, its/his Limited Guarantee or the Support Agreement; and provided, further, that such
Non-Consenting Investor shall have received (A) a full and unconditional release of its or his obligations (x) under this Agreement (other than the applicable provisions of Section 1.9 and Section 1.11.3 and except
with respect to
4
breaches of this Agreement by such Non-Consenting Investor occurring prior to the date of such release), and (y) if applicable, under its/his Equity Commitment Letter, its/his Limited
Guarantee and the Support Agreement, from Parent, the Company, and each other Investor (as the case may be), or (B) a mutually satisfactory indemnity with respect to such Non-Consenting Investors liabilities under this Agreement, and, if
applicable, its/his Equity Commitment Letter, its/his Limited Guarantee and the Support Agreement. In the event the Requisite Investors terminate the Non-Consenting Investors participation in the Transaction, the amount of the Non-Consenting
Investors Commitment shall first be offered to the Investors (other than any Non-Consenting Investor and any Failing Investor) in proportion of their respective Equity Commitments to the aggregate Equity Commitments of the Investors (other
than any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to this Section 1.7 and any Failing Investor) at the time of such termination, and if none or not all of the Non-Consenting Investors
Commitment is accepted by the Investors (other than any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to this Section 1.7 and any Failing Investor) in such proportion, then the Requisite Investors
may offer the Non-Consenting Investors Commitment, or portion thereof, to all of the Investors (other than any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to this Section 1.7 and any
Failing Investor) and/or to one or more new investors approved by the Requisite Investors.
1.8 Company Termination Fee. Any
Company Termination Fee paid by the Company or any of its Affiliates pursuant to the Merger Agreement or otherwise, after making adequate provisions for the payment or reimbursement of Consortium Costs pursuant to Section 1.9 hereof
shall be promptly paid by Parent or Merger Sub to the Investors who or whose Affiliate act as Guarantors under the Limited Guarantees (other than any Investor that is a (i) Non-Consenting Investor whose participation in the transaction has been
terminated pursuant to Section 1.7 hereof or (ii) a Failing Investor at the time of termination of the Merger Agreement) or their designees in proportion of their (or their Affiliates) respective Maximum Amount (as defined in
the Limited Guarantees) to the aggregate Maximum Amount of such Investors (or their Affiliates) (other than any Non-Consenting Investor whose participation in the transaction has been terminated pursuant to Section 1.7 hereof and any
Failing Investor).
1.9 Expense Sharing.
1.9.1 In the event the Merger is consummated, Parent or the Surviving Company will bear all out-of-pocket expenses incurred by
Parent, Merger Sub and jointly by all the Investors, including, without limitation, (i) the reasonable and documented fees, expenses and disbursements of lawyers, accountants, financial advisors, consultants and other advisors that have been
retained by Parent, Merger Sub or jointly by all the Investors (including, for the avoidance of doubt, Kirkland & Ellis International LLP, Conyers Dill & Pearman, CITIC Securities Co., Ltd and any advisor of an Investor whose
appointment and expenses are agreed to in writing in advance by all the Investors), and (ii) any fees related to the Merger incurred by Parent and Merger Sub (all such fees and expenses, in the aggregate, the Consortium
Costs). For the avoidance of doubt, the Consortium Costs shall include indemnities actually paid or payable to the lawyers, accountants, consultants, financial advisors, and other advisors who have been engaged by Parent, Merger Sub or
jointly by all the Investors with respect to the Merger; provided
5
that, unless and only to the extent otherwise approved by all the Investors in advance, Consortium Costs shall not include, and each Investor shall be responsible for, any costs and expenses
incurred by such individual Investor in connection with the Transaction, including without limitation, the reasonable and documented fees, expenses and disbursements of lawyers, accountants, financial advisors, consultants and other advisors that
may have been separately retained by such Investor.
1.9.2 In the event of a termination of the Merger Agreement in
accordance with its terms in which a Company Termination Fee is paid to Parent (or its designee), Parent shall first pay, or cause to be paid, all Consortium Costs from the Company Termination Fee and distribute, or cause to be distributed, any
remaining amount of the Company Termination Fee to the Investors (other than any Failing Investors) on pro rata basis according to the amount of their Commitments.
1.9.3 In the event of a termination of the Merger Agreement in accordance with its terms in which no Company Termination Fee is
paid to Parent (or its designee), each Investor (including, for the avoidance of doubt, any Failing Investor and Non-Consenting Investor) agrees that it will be responsible for its/his proportionate share (determined by reference to the amount of
its/his Commitment to the aggregate of Commitments of the Investors) of the Consortium Costs, and any fees and expenses incurred by any Investor other than the Consortium Costs will be borne by such Investor; provided that if the Merger
Agreement is terminated and the Merger is not consummated as a result of the breach by one or more Investors of such Investors respective obligations under this Agreement, or, if applicable, the Support Agreement or such Investors
respective Equity Commitment Letters, then such breaching Investor or Investors shall (A) be responsible for (i) all the Consortium Costs, (ii) any payment obligations of Parent and Merger Sub under Section 8.2(c) of the
Merger Agreement, or any guarantee of either of the foregoing pursuant to the Limited Guarantees and (iii) any other damages or losses payable to the Company; and (B) reimburse the Closing Investors for their respective fees and expenses
(other than the Consortium Costs) incurred in connection with the Transaction. Notwithstanding the foregoing, no Non-Consenting Investor shall be responsible for Consortium Costs incurred after the termination of such Non-Consenting Investors
participation in the Transaction.
1.9.4 Prior to making any payment of Consortium Costs hereunder, each Investor shall be
entitled to receive and review reasonable documentation of such fees and expenses.
1.9.5 The obligations under this
Section 1.9 shall exist whether or not the Merger is consummated, and shall survive the termination of the other terms of this Agreement.
1.10 Notice of Closing; Notices. Parent will use its commercially reasonable efforts to provide each Investor with at least
five (5) Business Days prior notice of the Closing Date under the Merger Agreement; provided that the failure to provide such notice will not relieve an Investor of its/his obligations under this Agreement. Any notices received by Parent
pursuant to Section 9.2 of the Merger Agreement shall be promptly provided to each Investor at the address set forth in such Investors (or its Affiliates) Equity Commitment Letter or the Support Agreement.
6
1.11 Representations and Warranties; Covenants.
1.11.1 Each party hereto represents and warrants to the other parties hereto that: (i) if such party is an entity, it is
duly organized, validly existing and in good standing in the jurisdiction of its incorporation, organization or formation, (ii) if such party is an entity, it has the requisite power and authority to execute, deliver and perform this Agreement
and the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and proceedings on the part of such party, (iii) this Agreement has been duly executed and delivered by such party and
constitutes a valid and binding agreement of such party enforceable against it in accordance with the terms hereof, and (iv) such partys execution, delivery and performance of this Agreement does not require a consent, waiver or approval
by any Person and will not violate: (a) if such party is an entity, any provision of its organizational documents, (b) any order, writ, injunction, decree or statute, or any rule or regulation, applicable to such party or its/his assets,
or (c) any of the terms of any material contract or agreement to which such party is a party or by which such party is bound, or any office such party holds.
1.11.2 Each Investor hereto represents, warrants and covenants to Parent, Merger Sub and the other Investors that:
(i) none of the information supplied in writing by such Investor specifically for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3 will contain a material misstatement of fact or a material omission of fact
necessary to make the information provided not misleading; and (ii) it has not entered into any agreement, arrangement or understanding with any other Investor, any other potential investor or group of investors or the Company with respect to
the subject matter of this Agreement and the Merger Agreement, other than the agreements expressly contemplated by or disclosed under this Agreement, the Merger Agreement, the Company SEC Filings or other forms, reports or other documents filed with
SEC by any Investor on or prior to the date hereof.
1.11.3 Until this Agreement is terminated pursuant to
Section 2.1, no Investor shall enter into any agreement, arrangement or understanding or have discussions with any other potential investor or acquirer or group of investors or acquirers or the Company or any of its representatives with
respect to the subject matter of this Agreement and the Merger Agreement or any other similar transaction involving the Company without the prior approval of the Requisite Investors; provided that this Section 1.11.3 shall
continue to apply to an Investor that is a Failing Investor or that is released from this Agreement pursuant to Section 1.7 for a period of one year following such failure or release.
1.11.4 Each of Parent and Merger Sub hereby represents, warrants and covenants to each of the Investors that it has not
entered, and prior to the Closing will not enter, into any agreement or arrangement of any kind with any Person that grants a Person: (i) the right to purchase a different class of security of Parent than that being purchased by the Investors
in accordance with the terms of the Equity Commitment Letters and the
7
Support Agreement, (ii) the right to purchase the same class of security of Parent as that being purchased by the Investors in accordance with the Equity Commitment Letters and the Support
Agreement, or (iii) any other right not provided for herein, except, in all cases, agreements or arrangements entered into pursuant to Section 1.5 herein, as contemplated by the Merger Agreement or the Support Agreement (which do
not modify the economic arrangements set forth herein or in the Support Agreement as in effect as of the date hereof), or otherwise entered into by Parent or Merger Sub with the prior written consent of all the Investors (other than any Failing
Investor and any Non-Consenting Investor whose participation in the Transaction is terminated pursuant to Section 1.7).
1.11.5 Neither Parent nor Merger Sub shall enter into any agreement with an Investor or group of Investors that has the effect
of discriminating against any Investor in a manner that is materially adverse to such Investor without such Investors consent, except to the extent expressly permitted by the terms of this Agreement. Parent shall provide to all Investors a
copy of each agreement to be entered into with less than all of the Investors prior to the execution of such agreement.
1.11.6 The Investors shall cooperate in defending any claim that the Investors are or any of them or their Affiliates is liable
to make payments under the Limited Guarantees.
1.11.7 The Investors shall cooperate with each other and use (and shall
cause their respective Subsidiaries and Affiliates to use) their respective reasonable best efforts to take or cause to be taken all actions and do or cause to be done all things reasonably necessary, proper or advisable on its/his respective part
to help Parent obtain as promptly as practicable all consents, approvals, registrations, authorizations, waivers, Permits and Orders necessary or advisable to be obtained from any third party and/or Governmental Entity in order to consummate the
Transaction (including the Merger).
1.12 PR Coordination. Subject to Section 6.10 of the Merger Agreement as it
relates to Parent and Merger Sub, each party hereto will coordinate in good faith on any and all press releases and other public relations matters with respect to the Merger and the transactions contemplated hereby. Unless otherwise required by Law
or the rules of any stock exchange or regulatory authority, no party hereto may issue any press release or otherwise make any public announcement or comment on the Merger and the transactions contemplated hereby without the prior consent of the
Requisite Investors.
1.13 Confidentiality. Each of the parties hereto agree that, until the second anniversary of the date hereof,
none of the parties hereto shall, and each party hereto shall, if applicable, cause its directors, officers, employees, advisors and other agents and representatives (all such Persons, with respect to any Person, such Persons
Representatives) not to, directly or indirectly, disclose to any other Person or entity (other than such partys Representatives) any Confidential Information received from the other parties hereto, except as compelled by a
court or required by Law, legal process, rule or regulation (including securities rules and regulations). For purposes hereof, Confidential Information means any information, whether in written, oral or other form with respect to
the Company, the parties hereto and the transactions contemplated under this Agreement, the Merger Agreement and other transaction agreements referenced herein
8
and therein, provided that Confidential Information does not include any information which at the time of disclosure or thereafter is (i) generally available to or known by the public
other than as a result of a disclosure by the receiving party of such information in breach of an obligation of confidentiality or (ii) lawfully available to the recipient of such information from a source other than the disclosing party or
its/his Representatives which source is not, as far as the receiving party is aware, in breach of an obligation of confidentiality.
1.14
Initial Parent Shareholders. Mr. Dong YU, as the initial (direct or indirect) shareholder of Parent, agrees to use commercially reasonable efforts to take all corporate actions reasonably necessary to cause Parent to give effect to and
comply with the matters set forth in this Agreement.
2.1 Effectiveness. This Agreement shall become effective on the
date hereof and shall terminate (except with respect to Sections 1.9, 1.10, 1.12, 1.13, and 2) upon the earlier of the Effective Time of the Merger and the termination of the Merger Agreement pursuant to
Article VIII thereof; provided that any liability for failure to comply with the terms of this Agreement shall survive such termination.
2.2 Amendment. This Agreement may be amended or modified and the provisions hereof may be waived, only by an agreement in writing
signed by all Investors.
2.3 Severability. In the event that any provision hereof would, under applicable Law, be invalid or
unenforceable in any respect, such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable Law. The provisions hereof are severable, and in the
event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.
2.4 Remedies. The parties hereto agree that, except as provided herein, this Agreement will be enforceable by all available remedies at
law or in equity (including, without limitation, specific performance). In the event that (i) Parent determines to enforce the provisions of the Equity Commitment Letters, and (ii) Parent determines to enforce the provisions of the Support
Agreement, in each case, at the direction of the Requisite Investors in accordance with this Agreement, and Investors (which shall include the Requisite Investors) are prepared to (x) cause Parent and Merger Sub to consummate the Merger in
accordance with this Agreement, (y) fulfill their obligations under the Support Agreement and (z) fund their Equity Commitments immediately prior to the Closing, as evidenced in writing to the other Investors (the Investors who are so
prepared for each applicable action, the Closing Investors), but one or more Investors fails to fund its/his Equity Commitment or provides written notice that it will not fund its/his Equity Commitment, or fails to fulfill its or
his obligations under the Support Agreement or provide written notice that it or he will not fulfill its or his obligations under the Support Agreement, as applicable, (each such Investor, a Failing Investor), the parties hereto
agree that the Closing Investors shall be entitled, in their discretion, to either (a) specific performance of the terms of this Agreement, the Equity Commitment Letters and/or the Support Agreement, as applicable, together with any costs of
enforcement incurred by the Closing Investors in seeking
9
to enforce such remedy or (b) payment by such Failing Investor(s) in an amount equal to the aggregate out-of-pocket damages incurred by such Closing Investors (including amounts paid under
any such Closing Investors Limited Guarantee). If Parent, acting at the direction of the Requisite Investors, determines to enforce the remedy described in the preceding sentence against any Failing Investor, it must do so against all Failing
Investors. If there are multiple Failing Investors, each Failing Investors portion of the total obligations hereunder shall be the amount equal to the product of (a) the amounts due from all Failing Investors hereunder (including the
value of any Rollover Commitment) multiplied by (b) a fraction of which the numerator is such Failing Investors Commitment, as applicable, and the denominator is the sum of all Failing Investors Commitments.
2.5 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain
of the Investors may be partnerships or limited liability companies, Parent, Merger Sub and each Investor covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this
Agreement shall be had against any current or future director, officer, employee, general or limited partner or member or manager of any Investor or of any partner, member, manager or Affiliate thereof, as such, whether by the enforcement of any
assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by any current or future director, officer, employee, general or limited partner or member or manager of any Investor or of any partner, member, manager or Affiliate thereof, as such, for any obligation of any Investor under this Agreement
or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation. Nothing set forth in this Agreement shall confer or give or shall be construed to
confer or give to any Person other than the parties hereto (including any Person acting in a Representative capacity) any rights or remedies against any party hereto other than as expressly set forth herein.
2.6 Governing Law. This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the
State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction. Any disputes, actions and proceedings against
any party hereto or arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (HKIAC) and resolved in accordance with the Arbitration Rules of HKIAC in force at
the relevant time and as may be amended by this Section 2.6. The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three arbitrators (each, an
Arbitrator). The claimant(s), irrespective of number, shall nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be nominated jointly by the
first two Arbitrators and shall serve as chairman of the tribunal. In the event the claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third Arbitrator within the
time limits specified by the Arbitration Rules of HKIAC, such Arbitrator shall be appointed promptly by the HKIAC. The tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be
final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement
10
of such award and, for purposes of the enforcement of such award, the parties hereto irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive
any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.
2.7 Exercise of Rights and
Remedies. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission nor waiver of any single breach or default be deemed a waiver of any other breach or
default occurring before or after that waiver.
2.8 Other Agreements. This Agreement, together with the agreements referenced
herein, constitutes the entire agreement, and supersedes all prior agreements, understandings, negotiations and statements, both written and oral, among the parties hereto or any of their Affiliates with respect to the subject matter contained
herein except for such other agreements as are references herein which shall continue in full force and effect in accordance with their terms; for the avoidance of doubt, the Consortium Agreement dated June 12, 2015 by and among Dong YU,
Skillgreat Limited, Fosun International Limited, Orrick Investments Limited, Sequoia Capital China I, L.P., Sequoia Capital China Partners Fund I, L.P., Sequoia Capital China Principals Fund I, L.P., Peak Reinsurance Company Limited (whose
participation therein has been terminated pursuant to a termination notice dated December 1, 2015) and Fidelidade - Companhia de Seguros, S.A. (whose participation therein has been terminated pursuant to a termination notice dated
December 1, 2015) shall be terminated with immediate effect and with no further force and effect from all respective upon the execution of this Agreement.
2.9 Assignment. This Agreement may not be assigned by any party hereto or by operation of law or otherwise without the prior written
consent of each of the other parties, except that the Agreement may be assigned to an Affiliate of a party hereto; provided that the party making such assignment shall not be released from its/his obligations hereunder. Any attempted
assignment in violation of this Section 2.9 shall be void.
2.10 No Representations or Duty. (a) Each party hereto
acknowledges and agrees that no party has made or will make any representation or warranty with respect to the terms, value or any other aspect of the Transactions unless expressly specified under this Agreement, the Merger Agreement and/or, if
applicable, the Support Agreement, the Equity Commitment Letters or the Limited Guarantee. Each Investor acknowledges, represents and warrants that it is not relying on any other Investor (i) for its/his due diligence concerning, or evaluation
of, the Company, the Company Subsidiaries or their respective assets or businesses, (ii) for its/his decision with respect to making any investment contemplated under this Agreement, the Merger Agreement and/or, if applicable, the Support
Agreement, the Equity Commitment Letters or the Limited Guarantee, or (iii) with respect to Tax and other economic considerations involved in such investment. (b) No party hereto shall have any fiduciary or other duty to any other party
except as expressly set forth in this Agreement or otherwise required by applicable Laws.
2.11 Sequoia China. The parties hereto
acknowledge and agree that (a) the name Sequoia Capital is commonly used to describe a variety of entities (collectively, the Sequoia Entities) that are affiliated by ownership or operational relationship and
engaged in a broad
11
range of activities related to investing and securities trading and (b) notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not be binding on, or
restrict the activities of, (i) any Sequoia Entity outside of the Sequoia China Sector Group or (ii) any Sequoia Entity primarily engaged in investment and trading in the secondary securities market. For purposes of the foregoing, the
Sequoia China Sector Group means all Sequoia Entities (whether currently existing or formed in the future) that are principally focused on companies located in, or with connections to, the PRC.
2.12 Uranus Transfer. Each party hereto acknowledges and agrees that, Uranus Connection Limited shall be deemed a Rollover
Investor under this Agreement with respect to its Rollover Securities as set out in the Support Agreement, and its signature page under which it is indicated as a Rollover Investor shall be released, upon and only upon
the completion of the Uranus Transfer (as defined in the Support Agreement) in accordance with Section 2.5 of the Support Agreement.
2.13 Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Signature pages follow]
12
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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|
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PARENT: |
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MOUNTAIN TIGER INTERNATIONAL LIMITED |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
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Director |
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MERGER SUB: |
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MOUNTAIN TIGER LIMITED |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
|
Director |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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EQUITY INVESTOR: |
|
DONG YU |
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/s/ Dong YU |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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EQUITY INVESTOR: |
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URANUS CONNECTION LIMITED |
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By: |
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/s/ Yao SUN |
Name: |
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Yao SUN |
Title: |
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Chief Executive Officer |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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EQUITY INVESTOR: |
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SAC FINANCE COMPANY LIMITED |
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By: |
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/s/ Zhang Qiang |
Name: |
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Zhang Qiang |
Title: |
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Director |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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EQUITY INVESTOR: |
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WILLOW INVESTMENT LIMITED |
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By: |
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/s/ Huateng MA |
Name: |
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Huateng MA |
Title: |
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Director |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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EQUITY INVESTOR: |
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ALL GAIN VENTURES LIMITED
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By: |
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/s/ Zhanshan XIE |
Name: |
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Zhanshan XIE |
Title: |
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Director |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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ROLLOVER INVESTOR: |
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DONG YU |
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/s/ Dong YU |
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SKILLGREAT LIMITED |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
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Director |
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VANTAGE GLOBAL HOLDINGS LTD |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
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Director |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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|
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ROLLOVER INVESTOR: |
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SAIF PARTNERS IV L.P. |
BY: SAIF IV GP, L.P., ITS GENERAL PARTNER |
BY: SAIF IV GP CAPITAL LTD., ITS GENERAL PARTNER |
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By: |
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/s/ Andrew Y. Yan |
Name: |
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Andrew Y. Yan |
Title: |
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Authorized Signatory |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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ROLLOVER INVESTOR: |
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SEQUOIA CAPITAL CHINA I, L.P. |
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By: |
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/s/ Kok Wai Yee |
Name: |
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Kok Wai Yee |
Title: |
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Authorized Signatory |
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SEQUOIA CAPITAL CHINA PARTNERS FUND I, L.P. |
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By: |
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/s/ Kok Wai Yee |
Name: |
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Kok Wai Yee |
Title: |
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Authorized Signatory |
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SEQUOIA CAPITAL CHINA PRINCIPALS FUND I, L.P. |
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By: |
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/s/ Kok Wai Yee |
Name: |
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Kok Wai Yee |
Title: |
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Authorized Signatory |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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ROLLOVER INVESTOR: |
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FOSUN INTERNATIONAL LIMITED |
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By: |
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/s/ Jingyan Huang |
Name: |
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Jingyan Huang |
Title: |
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Authorized Signatory |
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ORRICK INVESTMENTS LIMITED |
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By: |
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/s/ Jingyan Huang |
Name: |
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Jingyan Huang |
Title: |
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Authorized Signatory |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
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ROLLOVER INVESTOR: |
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URANUS CONNECTION LIMITED |
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By: |
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/s/ Yao SUN |
Name: |
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Yao SUN |
Title: |
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Chief Executive Officer |
SIGNATURE PAGE TO INTERIM
INVESTORS AGREEMENT
Exhibit 10
Execution Version
SUPPORT AGREEMENT
This
SUPPORT AGREEMENT (this Agreement) is entered into as of December 15, 2015 by and among Mountain Tiger International Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands
(Parent) and certain holders of shares and equity-based awards of Bona Film Group Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the Company) as listed on
Schedule A or, subject to Section 2.5 hereof, Schedule B attached hereto (each, a Rollover Securityholder and collectively, the Rollover Securityholders). Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, Parent, Mountain Tiger
Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (Merger Sub) and the Company have, concurrently with the execution of this Agreement,
entered into an Agreement and Plan of Merger, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the Merger Agreement), which provides, among other
things, for the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Parent (the Merger), upon the terms and subject to the conditions set forth
in the Merger Agreement;
WHEREAS, as of the date hereof, each Rollover Securityholder is (for the avoidance of doubt, upon the completion
of the Uranus Transfer as contemplated under Section 2.5, Uranus Connection Limited (Uranus) will be) the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of such Company Shares
(including those represented by ADSs but excluding any Company Restricted Shares), Company Options and/or Company Restricted Shares (as applicable) as set forth opposite such Rollover Securityholders name under the column Securities
Owned on Schedule A or Schedule B (as the case may be) attached hereto (with respect to each Rollover Securityholder, the Owned Securities) (the Owned Securities, together with any other Company Shares and/or
Equity Interests of the Company acquired (whether beneficially or of record) by such Rollover Securityholder after the date hereof and prior to the earlier of the Effective Time and the termination of all such Rollover Securityholders
obligations under this Agreement, including any Company Shares and/or Equity Interests acquired by means of purchase, as a result of stock dividend or distribution, stock split, recapitalization, combination or reclassification, or issued or
received upon the vesting or exercise of any Company Share Awards or warrants or the conversion/exchange of any convertible/exchangeable securities or otherwise, being collectively referred to herein as the Securities);
WHEREAS, in connection with the consummation of the Merger, each Rollover Securityholder agrees to (a) the cancellation of such Company
Shares (including those represented by ADSs), Company Options and/or Company Restricted Shares (as applicable) as set forth opposite such Rollover Securityholders name under the column Rollover Securities on Schedule A or,
upon the completion of the Uranus Transfer as contemplated under Section 2.5, Schedule B attached hereto (with respect to each Rollover Securityholder, the Rollover Securities) for no consideration in connection
with the Merger, and (b) subscribe for newly issued ordinary shares of Parent (the Parent Shares) at par immediately prior to the Closing in accordance with and subject to the terms and conditions of this Agreement;
WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger Agreement and
consummate the transactions contemplated thereby, including the Merger, the Rollover Securityholders are entering into this Agreement;
WHEREAS, the Rollover Securityholders acknowledge that Parent and Merger Sub are entering into the Merger Agreement in reliance on the
representations, warranties, covenants and other agreements of the Rollover Securityholders set forth in this Agreement; and
NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING;
GRANT AND APPOINTMENT OF PROXY
Section 1.1 Voting. From and after the date hereof until the earlier of the Closing
and the termination of the Merger Agreement pursuant to and in compliance with the terms therein (such earlier time, the Expiration Time), each Rollover Securityholder irrevocably and unconditionally hereby agrees that
(i) at the Company Shareholders Meeting or any other meeting (whether annual or extraordinary) of the shareholders of the Company in connection with the Merger Agreement and/or any transaction contemplated thereby (including the Merger),
however called (and any adjournment or postponement thereof), at which any of the matters described in paragraphs (a) (f) hereof is to be considered, or (ii) in connection with any written resolution of the Companys
shareholders in connection with the Merger Agreement and/or any transaction contemplated thereby (including the Merger), such Rollover Securityholder shall (x) in case of a meeting, appear or cause its/his Representative(s) to appear at such
meeting or otherwise cause its/his Securities to be counted as present thereat for purposes of determining whether a quorum is present and (y) vote or cause to be voted (including by proxy or written resolution, if applicable) all of such
Rollover Securityholders Securities,
(a) for authorization and approval of the Merger Agreement, the Merger and all other
transactions contemplated by the Merger Agreement and any action required in furtherance thereof,
(b) against any Acquisition Proposal or
any other transaction, proposal, agreement or action made in opposition to authorization and approval of the Merger Agreement or in competition or inconsistent with the Merger and the other transactions contemplated by the Merger Agreement,
(c) against any other action, agreement or transaction that is intended, that could reasonably be expected, or the effect of which could
reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement or the performance by such Rollover
Securityholder of its/his obligations under this Agreement, including, without limitation: (i) any extraordinary corporate transaction, such as a scheme of arrangement, merger, consolidation or other business combination involving the Company
or any Company Subsidiary (other than the Merger); (ii) a sale, lease or transfer of a material
2
amount of assets of the Company or any Company Subsidiary or a reorganization, recapitalization or liquidation of the Company or any Company Subsidiary; (iii) an election of new members to
the board of directors of the Company, other than nominees to the board of directors of the Company who are serving as directors of the Company on the date of this Agreement or as otherwise provided in the Merger Agreement; (iv) any material
change in the present capitalization or dividend policy of the Company or any amendment or other change to the Companys memorandum or articles of association, except if approved in writing by Parent; or (v) any other action that would
require the consent of Parent pursuant to the Merger Agreement, except if approved in writing by Parent,
(d) against any action,
proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such
Rollover Securityholder contained in this Agreement,
(e) in favor of any adjournment or postponement of the Company Shareholders Meeting
as may be reasonably requested by Parent, and
(f) in favor of any other matter necessary to effect the transactions contemplated by the
Merger Agreement.
Section 1.2 Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Effective immediately upon the execution of the Merger Agreement and until the Expiration Time, without any further action by any Person,
and only in the event and to the extent that such Rollover Securityholder fails to perform his or its obligations under Section 1.1, each Rollover Securityholder hereby irrevocably appoints Parent and any designee thereof as its/his
proxy and attorney-in-fact (with full power of substitution), to vote or cause to be voted (including by proxy or written resolution, if applicable) such Rollover Securityholders Securities in accordance with Section 1.1 above at
the Company Shareholders Meeting or other annual or extraordinary meeting of the shareholders of the Company, however called, including any adjournment or postponement thereof, at which any of the matters described in Section 1.1 above
is to be considered. Each Rollover Securityholder represents that all proxies, powers of attorney, instructions or other requests given by such Rollover Securityholder prior to the execution of this Agreement in respect of the voting of such
Rollover Securityholders Securities, if any, are not irrevocable and each Rollover Securityholder hereby revokes (or causes to be revoked) any and all previous proxies, powers of attorney, instructions or other requests with respect to such
Rollover Securityholders Securities. Each Rollover Securityholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy.
(b) Each Rollover Securityholder affirms that the irrevocable proxy set forth in this Section 1.2 is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Rollover Securityholder under this Agreement. Each Rollover Securityholder further affirms that the irrevocable proxy is
coupled with an interest and, except as set forth in this Section 1.2, is intended to be irrevocable prior to the Expiration Time. If for any reason the proxy granted herein is not irrevocable, then each Rollover Securityholder agrees to
vote such Rollover Securityholders Securities in accordance with Section 1.1 above prior to the Expiration Time. The parties agree that the foregoing is a voting agreement.
3
Section 1.3 Restrictions on Transfers. Except as provided for in Article III below,
pursuant to the Merger Agreement or as contemplated under Section 2.5 below, each Rollover Securityholder hereby agrees that, from the date hereof until the Expiration Time, without the prior approval of all other Rollover
Securityholders and Parent, such Rollover Securityholder shall not, directly or indirectly, (a) sell (constructively or otherwise), transfer, assign, tender in any tender or exchange offer, pledge, grant, encumber, hypothecate or similarly
dispose of (by merger, testamentary disposition, operation of law or otherwise) (collectively, Transfer), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect
to the Transfer of any Securities, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar
transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any Securities and (i) has, or would reasonably be expected to have, the effect of reducing or limiting such
Rollover Securityholders economic interest in such Securities and/or (ii) grants a third party the right to vote or direct the voting of such Securities (any such transaction, a Derivative Transaction), (b) deposit
any Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (c) convert or exchange, or take any action which would
result in the conversion or exchange, of any Securities, (d) knowingly take any action that would make any representation or warranty of such Rollover Securityholder set forth in this Agreement untrue or incorrect or have the effect of
preventing, disabling, or delaying such Rollover Securityholder from performing any of its/his obligations under this Agreement or that is intended, or would reasonably be expected, to impede, frustrate, interfere with, delay, postpone, adversely
affect or prevent the consummation of the Merger or the other transactions contemplated by the Merger Agreement or this Agreement or the performance by the Company of its obligations under the Merger Agreement or by any Rollover Securityholder from
performing any of his or its/his obligations under this Agreement, or (e) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a), (b), (c) or (d); provided that the foregoing shall not
prevent the conversion of the Securities into the right to receive any merger consideration in accordance with the terms of the Merger Agreement. Any purported Transfer in violation of this Section 1.3 shall be null and void.
ARTICLE II
ROLLOVER
SECURITIES
Section 2.1 Cancellation of Rollover Securities. Subject to the terms and conditions set forth herein,
(a) each Rollover Securityholder agrees that its/his Rollover Securities shall be cancelled at the Effective Time for no consideration, and (b) other than its/his Rollover Securities, all Equity Interests of the Company held by such
Rollover Securityholder, if any, shall be treated as set forth in the Merger Agreement and not be affected by the provisions of this Agreement.
Section 2.2 Issuance of Parent Shares and Rollover of Company Share Awards.
(a) Immediately prior to the Closing, in consideration for the cancellation of the Rollover Securities that are Company Shares (including
those represented by ADSs) and/or Company Restricted Shares (whether vested or unvested) held by each Rollover
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Securityholder in accordance with Section 2.1, Parent shall issue to such Rollover Securityholder (or, if designated by such Rollover Securityholder in writing, an Affiliate of such
Rollover Securityholder), and such Rollover Securityholder or its/his Affiliate (as applicable) shall subscribe at par value for, such aggregate number of Parent Shares as set forth opposite such Rollover Securityholders name under the column
Parent Shares on Schedule A or, upon the completion of the Uranus Transfer contemplated under Section 2.5 hereof, Schedule B attached hereto. Each Rollover Securityholder hereby acknowledges and agrees that
(i) delivery of such Parent Shares shall constitute complete satisfaction of all obligations towards or sums due to such Rollover Securityholder by Parent and Merger Sub in respect of the Rollover Securities that are Company Shares (including
those represented by ADSs) and/or Company Restricted Shares (whether vested or unvested) held by such Rollover Securityholder and cancelled pursuant to Section 2.1 above, and (ii) such Rollover Securityholder shall have no right to
any merger consideration in respect of the foregoing Rollover Securities held by such Rollover Securityholder.
(b) Each Rollover
Securityholder hereby agrees that the Rollover Securities that are Company Options (whether Vested Company Options or Unvested Company Options) held by such Rollover Securityholder shall be cancelled at the Effective Time in accordance with
Section 2.1 in exchange for the right to receive substituted options of Parent to purchase such aggregate number of Parent Shares as set forth opposite such Rollover Securityholders name under the column Parent Options on
Schedule A or, upon the completion of the Uranus Transfer contemplated under Section 2.5 hereof, Schedule B attached hereto, pursuant to the terms and conditions to be determined by Parent and entitling such Rollover
Securityholder to substantially the same economic value as the original Company Options.
Section 2.3 Rollover Closing.
Subject to the satisfaction in full (or waiver, if permissible) of all of the conditions set forth in Sections 7.1, 7.2 and 7.3 of the Merger Agreement (other than conditions that by their nature are to be satisfied or waived, as applicable, at the
Closing), the closing of the subscription and issuance of Parent Shares contemplated hereby (the Rollover Closing) shall take place immediately prior to the Closing.
Section 2.4 Deposit of Rollover Securities. No later than three (3) Business Days prior to the Closing, each Rollover
Securityholder and any agent of such Rollover Securityholder holding certificates evidencing any of the Rollover Securities shall deliver or cause to be delivered to Parent all certificates representing such Rollover Securities in such Persons
possession, for disposition in accordance with the terms of this Agreement; such certificates and documents shall be held by Parent or any agent authorized by Parent until the Closing.
Section 2.5 Uranus Share Transfer. Each party hereto acknowledges and agrees that, Skillgreat Limited wishes to Transfer to
Uranus, and Uranus wishes to accept such Transfer from Skillgreat Limited (the Uranus Transfer), 2,032,689 Company Shares registered in the name of Skillgreat Limited as record holder as of the date hereof, within forty-five
(45) days after the date hereof. Each party hereto further acknowledges and confirms that, upon and only upon the completion of the Uranus Transfer, automatically and without any further action on the party of any party hereto, (i) the
signature page of Uranus attached hereto shall be released, (ii) Uranus shall become a party of and a Rollover Securityholder under this Agreement and be bound by and subject to any and all of the terms and conditions hereof, and
(iii) Schedule A attached hereto shall be replaced and substituted in its entity by Schedule B attached hereto.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ROLLOVER SECURITYHOLDERS
Section 3.1 Representations and Warranties. Each Rollover Securityholder, severally and not jointly, represents and warrants to
Parent as of the date hereof and as of the Closing:
(a) such Rollover Securityholder has full legal right, power, capacity and authority
to execute and deliver this Agreement, to perform such Rollover Securityholders obligations hereunder and to consummate the transactions contemplated hereby;
(b) this Agreement has been duly executed and delivered by such Rollover Securityholder and, in case the Rollover Securityholder is an entity,
the execution, delivery and performance of this Agreement by such Rollover Securityholder and the consummation by such Rollover Securityholder of the transactions contemplated hereby have been duly authorized by all necessary action on the part of
such Rollover Securityholder and no other actions or proceedings on the part of such Rollover Securityholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby by such Rollover Securityholder;
(c) assuming due authorization, execution and delivery by Parent and other Rollover Securityholders, this Agreement constitutes a legal, valid
and binding agreement of such Rollover Securityholder, enforceable against such Rollover Securityholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) (i) subject to Section 2.5, such Rollover Securityholder (A) is and/or, immediately prior to the Closing, will be the
beneficial owner of, and has and will have good and valid title to, its/his Securities, free and clear of Liens other than as created by this Agreement or disclosed under the Merger Agreement, and (B) has and/or will have sole or shared
(together with Affiliates controlled by such Rollover Securityholder) voting power, power of disposition, and power to demand dissenters rights, in each case with respect to all of its/his Securities, with no limitations, qualifications, or
restrictions on such rights, subject to applicable United States federal securities Laws, Laws of the Cayman Islands, Laws of the Peoples Republic of China and the terms of this Agreement; (ii) its/his Securities are not subject to any
voting trust agreement or other Contract to which such Rollover Securityholder is a party restricting or otherwise relating to the voting or Transfer of the Securities other than this Agreement; (iii) except for any transaction disclosed in the
Company SEC Filings or other forms, reports or other documents filed with SEC by such Rollover Securityholder on or prior to the date hereof or under the Merger Agreement, such Rollover Securityholder has not Transferred any interest in any of
its/his Securities pursuant to any Derivative Transaction; (iv) as of the date hereof, other than its/his Securities, such Rollover Securityholder does not own, beneficially or of record, any Company Shares, Company Share
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Awards, other securities of the Company, or any direct or indirect interest in any such securities (including by way of derivative securities); and (v) such Rollover Securityholder has not
appointed or granted any proxy or power of attorney that is still in effect with respect to any of its/his Securities, except as contemplated by this Agreement;
(e) except for the applicable requirements of the Exchange Act, the Securities Act, any other U.S. federal or state securities Laws, the rules
and regulations of NASDAQ and Laws of the Cayman Islands, (i) no filing with, and no permit, authorization, consent or approval of any Governmental Authority is necessary on the part of such Rollover Securityholder for the execution, delivery
and performance of this Agreement by such Rollover Securityholder or the consummation by such Rollover Securityholder of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by such
Rollover Securityholder nor the consummation by such Rollover Securityholder of the transactions contemplated hereby, nor compliance by such Rollover Securityholder with any of the provisions hereof shall (A) conflict with or violate any
provision of the organizational documents of any such Rollover Securityholder which is an entity, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on property or assets of such Rollover Securityholder pursuant to any Contract to which such Rollover
Securityholder is a party or by which such Rollover Securityholder or any property or asset of such Rollover Securityholder is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such
Rollover Securityholder or any of such Rollover Securityholders properties or assets;
(f) there is no Action pending against any
such Rollover Securityholder or, to the knowledge of such Rollover Securityholder, threatened against any such Rollover Securityholder or any other Person that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by
such Rollover Securityholder of its/his obligations under this Agreement;
(g) such Rollover Securityholder has been afforded the
opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Parent concerning the terms and conditions of the transactions contemplated hereby and the merits and risks of owning the Parent Shares
and such Rollover Securityholder acknowledges that it/he has been advised to discuss with its/his own counsel the meaning and legal consequences of such Rollover Securityholders representations and warranties in this Agreement and the
transactions contemplated hereby; and
(h) each Rollover Securityholder understands and acknowledges that Parent and Merger Sub are
entering into the Merger Agreement in reliance upon such Rollover Securityholders execution, delivery and performance of this Agreement.
Section 3.2 Covenants. Each Rollover Securityholder hereby:
(a) agrees, prior to the Expiration Time, not to knowingly take any action that would make any representation or warranty of such Rollover
Securityholder contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the performance by such Rollover Securityholder of its/his obligations under this Agreement;
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(b) irrevocably waives, and agrees not to exercise, any rights of appraisal or rights of dissent
from the Merger that such Rollover Securityholder may have with respect to such Rollover Securityholders Securities (including without limitation any rights under Section 238 of the Cayman Companies Law) prior to the Expiration Time;
(c) agrees to permit the Company and Parent to publish and disclose in any press release, the Proxy Statement (including all documents filed
with the SEC in accordance therewith) and any other disclosure documents in connection with the Merger Agreement and any filings with or notices to any Governmental Entity in connection with the Merger Agreement (or the transaction contemplated
thereby), such Rollover Securityholders identity and beneficial ownership of Securities and the nature of such Rollover Securityholders commitments, arrangements and understandings under this Agreement (including, for the avoidance of
doubt, the disclosure of this Agreement) and any other information, in each case, that the Company or Parent reasonably determines in its good faith judgement is required to be disclosed by Law;
(d) agrees and covenants, severally and not jointly, that such Rollover Securityholder shall promptly (and in any event within twenty-four
(24) hours) notify Parent of any new Company Shares and/or other Equity Interests of the Company with respect to which beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) is acquired by such Rollover Securityholder,
including, without limitation, by means of purchase, as a result of stock dividend or distribution, stock split, recapitalization, combination or reclassification, or issued or received upon the vesting or exercise of any Company Share Awards or
warrants or the conversion/exchange of any convertible/exchangeable securities of the Company or otherwise, after the date hereof. Any such Company Shares and/or other Equity Interest of the Company shall automatically become subject to the terms of
this Agreement (other than Article II (Rollover Securities) unless each of the Rollover Securityholders agrees that any or all of such new Company Shares and/or other Equity Interests of the Company shall be designated as the Rollover Securities),
and Schedule A or Schedule B (as the case may be) attached hereto shall be deemed amended accordingly; and
(e) agrees
further that, upon request of Parent, such Rollover Securityholder shall execute and deliver any additional documents, consents or instruments and take such further actions as may reasonably be deemed by Parent to be necessary or desirable to carry
out the provisions of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to each Rollover Securityholder that as of the date hereof and as of the Closing:
(a) Parent is duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. Parent has all requisite power
and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by Parent and the execution, delivery and performance of this Agreement by Parent and the
consummation by Parent of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Parent
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and no other actions or proceedings on the part of Parent are necessary to authorize this Agreement, or to consummate the transactions contemplated hereby., Assuming due authorization, execution
and delivery by the Rollover Securityholders, this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting creditors rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(b) (i) except for the applicable requirements of the Exchange Act, Laws of the Cayman Islands and applicable Laws of the Peoples
Republic of China, no filing with, and no permit, authorization, consent or approval of, any Governmental Entity is necessary on the part of Parent for the execution, delivery and performance of this Agreement by Parent or the consummation by Parent
of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by Parent, nor the consummation by Parent of the transactions contemplated hereby, nor compliance by Parent with any of the
provisions hereof shall (A) conflict with or violate any provision of the organizational documents of Parent, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would
become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of Parent pursuant to, any Contract to which Parent is a party or by
which Parent, or any of its property or asset is bound or affected, or (C) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent or any of its properties or assets;
(c) at the Rollover Closing, the Parent Shares to be issued under this Agreement shall have been duly and validly authorized and when issued
and delivered in accordance with the terms hereof, will be validly issued, fully paid and nonassessable, free and clear of all claims and Liens, other than restrictions arising under applicable securities Laws and agreement entered into by the
shareholders of Parent at or around the Rollover Closing; and
(d) Except as contemplated by the Merger Agreement or any other agreement
entered into between relevant parties on or prior to the date hereof, or as disclosed in the Company SEC Filings or other forms, reports or other documents filed with SEC by any Rollover Securityholder on or prior to the date hereof, or otherwise
agreed to in writing by the parties hereto, at and immediately after the Rollover Closing, there shall be (i) no options, warrants, or other rights to acquire share capital of Parent, (ii) no outstanding securities exchangeable for or
convertible into share capital of Parent, and (iii) no outstanding rights to acquire or obligations to issue any such options, warrants, rights or securities.
ARTICLE V
TERMINATION
This Agreement, and the obligations of the Rollover Securityholders hereunder (including, without limitation, Section 1.2
hereof), shall terminate and be of no further force or effect immediately upon the earlier to occur of (a) the Closing and (b) the date of termination of the Merger Agreement in accordance with its terms. Notwithstanding the preceding
sentence, this Article V and Article VI shall survive any termination of this Agreement. Nothing in this Article V shall relieve or otherwise limit any partys liability for
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any breach of this Agreement prior to the termination of this Agreement. If for any reason the Merger fails to occur but the Rollover Closing contemplated by Article II has already taken
place, then Parent shall promptly take all such actions as are necessary to restore each such Rollover Securityholder to the position it was in with respect to ownership of the Rollover Securities prior to the Rollover Closing.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. All notices and other communications hereunder shall be in writing in the English language and shall be
deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt by facsimile or e-mail, or (b) on the first Business Day following the date of dispatch if delivered
utilizing a next-day service by a recognized next-day courier. All notices hereunder shall be delivered to the addresses set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this
Section 6.1):
(i) If to a Rollover Securityholder, to the address set forth next to such Rollover Securityholders name
on Schedule A or Schedule B (as the case may be) attached hereto.
(ii) If to Parent:
Mountain Tiger International Limited
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18/F Tower 1, U-town Office Building, No. 1 San Feng Bei Li, Chaoyang |
District, Beijing, China |
Attention: |
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Dong YU |
Facsimile: |
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+86 10 5631 0828 |
E- mail: |
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yudong@bonafilm.cn |
With a copy (which shall not constitute notice) to:
Kirkland & Ellis
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26th Floor, Gloucester Tower |
The Landmark |
15 Queens Road, Central |
Hong Kong |
Attention: |
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David Zhang |
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Jesse Sheley |
Facsimile: |
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+852-3761-3301 |
E-mail: |
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david.zhang@kirkland.com |
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jesse.sheley@kirkland.com |
Section 6.2 Capacity. None of the Rollover Securityholders executing this Agreement who is or
becomes during the term hereof a director or officer of the Company shall be deemed to make any agreement or understanding in this Agreement in such Persons capacity as a director or officer. Notwithstanding anything to the contrary in this
Agreement,
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(i) each Rollover Securityholder is entering into this Agreement, and agreeing to become bound hereby, solely in its/his capacity as a beneficial owner of, or as a trust whose beneficiaries are
the beneficial owners of, the Securities owned by it and not in any other capacity (including without limitation any capacity as a director or officer of the Company) and (ii) nothing in this Agreement shall obligate such Rollover
Securityholder or its/his Representatives to take, or forbear from taking, as a director or officer of the Company, any action which is inconsistent with its/his or his fiduciary duties under the applicable Laws.
Section 6.3 Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as
to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction. If any provision of this Agreement
is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.
Section 6.4 Entire
Agreement. This Agreement and the Merger Agreement embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and thereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.
Section 6.5 Specific Performance. Each Rollover Securityholder acknowledges and agrees that monetary damages would not be an
adequate remedy in the event that any covenant or agreement of such Rollover Securityholder in this Agreement is not performed in accordance with its terms, and therefore agrees that, in addition to and without limiting any other remedy or right
available to Parent, Parent will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof. Each
Rollover Securityholder agrees not to oppose the granting of such relief in the event a court determines that such a breach has occurred, and to waive any requirement for the securing or posting of any bond in connection with such remedy. All
rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by Parent shall not
preclude the simultaneous or later exercise of any other such right, power or remedy by Parent.
Section 6.6 Amendments;
Waivers. At any time prior to the Expiration Time, 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 each Rollover Securityholder and
Parent, or in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
Section 6.7 Governing
Law; Dispute Resolution; Jurisdiction. This Agreement shall be interpreted, construed, performed and enforced in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent
such principles or rules would require or permit the application of the Laws of another jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Agreement, including any dispute regarding its breach,
termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any
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dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such
consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 6.7. The arbitration shall be conducted in accordance with the Hong Kong
International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. There
shall be three arbitrators. One arbitrator shall be nominated by the claimant(s) and one arbitrator shall be nominated by the respondent(s). If either the claimant(s) or respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall
appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within thirty (30) days after such two arbitrators have been selected,
the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any
element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any Person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in
writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain
confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to
exercise their remaining respective rights, and fulfill their remaining respective obligations under this Agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award
rendered in accordance with the provisions of this Section 6.7 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award
has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the parties pursuant to or relating to this
Agreement, each party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
Section 6.8 Waiver of Jury Trial. Each party hereto hereby irrevocably and unconditionally waives to the fullest extent permitted
by applicable Laws any right it may have to trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement.
Section 6.9 No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement and nothing in this Agreement,
express or implied, is intended to confer on any Person other than the parties hereto (and their respective successors, heirs and permitted assigns), any rights, remedies, obligations or liabilities, except as specifically set forth in this
Agreement.
Section 6.10 Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except that Parent may assign this Agreement (in whole but not in part) in connection with a
permitted assignment of the Merger Agreement by Parent, as applicable. Subject to the
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preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns and, in the case of any
applicable Rollover Securityholder, his, her or its estate, heirs, beneficiaries, personal representatives and executors.
Section 6.11 No Presumption Against Drafting Party. Each of the parties to this Agreement acknowledges that it has been
represented by independent counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this
Agreement against the drafting party has no application and is expressly waived.
Section 6.12 Sequoia China. The parties
hereto acknowledge and agree that (a) the name Sequoia Capital is commonly used to describe a variety of entities (collectively, the Sequoia Entities) that are affiliated by ownership or operational relationship
and engaged in a broad range of activities related to investing and securities trading and (b) notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not be binding on, or restrict the activities of,
(i) any Sequoia Entity outside of the Sequoia China Sector Group or (ii) any Sequoia Entity primarily engaged in investment and trading in the secondary securities market. For purposes of the foregoing, the Sequoia China Sector
Group means all Sequoia Entities (whether currently existing or formed in the future) that are principally focused on companies located in, or with connections to, the PRC.
Section 6.13 Counterparts. This Agreement may be executed in two or more consecutive counterparts (including by facsimile or email
pdf format), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and
delivered (by telecopy, email pdf format or otherwise) to the other parties; provided, however, that if any of the Rollover Securityholders fails for any reason to execute, or perform their obligations under, this Agreement, this
Agreement shall remain effective as to all parties executing this Agreement.
[Signature Pages to follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
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PARENT |
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MOUNTAIN TIGER INTERNATIONAL LIMITED |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
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Director |
SIGNATURE
PAGE TO SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
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ROLLOVER SECURITYHOLDERS |
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DONG YU |
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/s/ Dong YU |
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SKILLGREAT LIMITED |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
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Director |
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VANTAGE GLOBAL HOLDINGS LTD |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
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Director |
SIGNATURE
PAGE TO SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
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ROLLOVER SECURITYHOLDERS |
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FOSUN INTERNATIONAL LIMITED |
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By: |
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/s/ Jingyan Huang |
Name: |
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Jingyan Huang |
Title: |
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Authorized Signatory |
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ORRICK INVESTMENTS LIMITED |
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By: |
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/s/ Jingyan Huang |
Name: |
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Jingyan Huang |
Title: |
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Authorized Signatory |
SIGNATURE
PAGE TO SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
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ROLLOVER SECURITYHOLDERS |
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SEQUOIA CAPITAL CHINA I, L.P. |
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By: |
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/s/ Kok Wai Yee |
Name: |
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Kok Wai Yee |
Title: |
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Authorized Signatory |
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SEQUOIA CAPITAL CHINA PARTNERS FUND I, L.P. |
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By: |
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/s/ Kok Wai Yee |
Name: |
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Kok Wai Yee |
Title: |
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Authorized Signatory |
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SEQUOIA CAPITAL CHINA PRINCIPALS FUND I, L.P. |
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By: |
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/s/ Kok Wai Yee |
Name: |
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Kok Wai Yee |
Title: |
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Authorized Signatory |
SIGNATURE
PAGE TO SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
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ROLLOVER SECURITYHOLDERS |
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SAIF PARTNERS IV L.P. |
BY: SAIF IV GP, L.P., ITS GENERAL PARTNER |
BY: SAIF IV GP CAPITAL LTD., ITS GENERAL PARTNER |
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By: |
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/s/ Andrew Y. Yan |
Name: |
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Andrew Y. Yan |
Title: |
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Authorized Signatory |
SIGNATURE
PAGE TO SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the
date and year first written above.
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ROLLOVER SECURITYHOLDERS |
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URANUS CONNECTION LIMITED |
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By: |
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/s/ Yao SUN |
Name: |
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Yao SUN |
Title: |
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Chief Executive Officer |
SIGNATURE
PAGE TO SUPPORT AGREEMENT
SCHEDULE A
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Name |
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Notice Address |
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Securities Owned (as of the date hereof) |
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Rollover Securities |
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Parent Shares |
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Parent Options |
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Company Shares* |
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ADSs |
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Company Options |
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Company Restricted Shares |
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Company Shares* |
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ADSs |
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Company Options |
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Company Restricted Shares |
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Dong YU |
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18/F Tower 1, U-town Office Building, No. 1 San Feng Bei Li, Chaoyang District, Beijing, China
Attention: Dong YU
Facsimile: +86 10 5631 0828
Email: yudong@bonafilm.cn |
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13,048,076.50 |
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962,765 |
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3,145,117 |
|
|
|
13,048,076.50 |
|
|
|
|
|
|
|
962,765 |
|
|
|
3,145,117 |
|
|
|
16,193,193.50 |
|
|
|
962,765 |
|
Skillgreat Limited |
|
|
|
|
|
|
|
|
|
|
|
Vantage Global Holdings Ltd |
|
|
|
|
|
|
|
|
|
|
|
Fosun International Limited |
|
Room 808, ICBC Tower, 3 Garden
Road, Central, Hong Kong Attention: Ms. Jingyan Huang
Facsimile: +86-21-63335035 Email: huangjy@fosun.com |
|
|
|
|
|
|
4,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,000,000 |
|
|
|
|
|
|
|
|
|
|
|
2,000,000 |
|
|
|
|
|
Orrick Investments Limited |
|
|
|
|
|
|
|
|
|
|
|
Sequoia Capital China I, L.P. |
|
Suite 3613, 36/F, Two Pacific Place, 88 Queensway Road, Hong Kong
Attention: Kok Wai Yee Tel: +852 2501 8989
Facsimile: +852 2501 5249 Email: wkok@sequoiacap.com |
|
|
1,296,678 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,296,678 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,296,678 |
|
|
|
|
|
Sequoia Capital China Partners Fund I, L.P. |
|
|
|
148,993 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
148,993 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
148,993 |
|
|
|
|
|
Sequoia Capital China Principals Fund I, L.P. |
|
|
|
200,691 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,691 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,691 |
|
|
|
|
|
SAIF Partners IV L.P. |
|
Suites 2516-2520, Two Pacific Place, 88 Queensway, Hong Kong
Attention: Nikki Yang/Anita Chan Facsimile: 852 2234
9116 Email: nyang@sbaif.com |
|
|
|
|
|
|
4,705,210 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,705,210 |
|
|
|
|
|
|
|
|
|
|
|
2,352,605 |
|
|
|
|
|
* |
The numbers of Company Shares exclude those represented by ADSs. |
SCHEDULE B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name |
|
Notice Address |
|
Securities Owned (upon completion of the Uranus Transfer) |
|
|
Rollover Securities |
|
|
Parent Shares |
|
|
Parent Options |
|
|
|
Company Shares* |
|
|
ADSs |
|
|
Company Options |
|
|
Company Restricted Shares |
|
|
Company Shares* |
|
|
ADSs |
|
|
Company Options |
|
|
Company Restricted Shares |
|
|
|
Dong YU |
|
18/F Tower 1, U-town Office Building, No. 1 San Feng Bei Li, Chaoyang District, Beijing, China
Attention: Dong YU
Facsimile: +86 10 5631 0828
Email: yudong@bonafilm.cn |
|
|
11,015,387.50 |
|
|
|
|
|
|
|
962,765 |
|
|
|
3,145,117 |
|
|
|
11,015,387.50 |
|
|
|
|
|
|
|
962,765 |
|
|
|
3,145,117 |
|
|
|
14,160,504.50 |
|
|
|
962,765 |
|
Skillgreat Limited |
|
|
|
|
|
|
|
|
|
|
|
Vantage Global Holdings Ltd. |
|
|
|
|
|
|
|
|
|
|
|
Fosun International Limited |
|
Room 808, ICBC Tower, 3 Garden
Road, Central, Hong Kong Attention: Ms. Jingyan Huang
Facsimile: +86-21-63335035
Email: huangjy@fosun.com |
|
|
|
|
|
|
4,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,000,000 |
|
|
|
|
|
|
|
|
|
|
|
2,000,000 |
|
|
|
|
|
Orrick Investments Limited |
|
|
|
|
|
|
|
|
|
|
|
Sequoia Capital China I, L.P. |
|
Suite 3613, 36/F, Two Pacific Place, 88 Queensway Road, Hong Kong
Attention: Kok Wai Yee Tel: +852 2501 8989
Facsimile: +852 2501 5249
Email: wkok@sequoiacap.com |
|
|
1,296,678 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,296,678 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,296,678 |
|
|
|
|
|
Sequoia Capital China Partners Fund I, L.P. |
|
|
|
148,993 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
148,993 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
148,993 |
|
|
|
|
|
Sequoia Capital China Principals Fund I, L.P. |
|
|
|
200,691 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,691 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,691 |
|
|
|
|
|
SAIF Partners IV L.P. |
|
Suites 2516-2520, Two Pacific Place, 88 Queensway, Hong Kong
Attention: Nikki Yang/Anita Chan Facsimile: 852 2234
9116 Email: nyang@sbaif.com |
|
|
|
|
|
|
4,705,210 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,705,210 |
|
|
|
|
|
|
|
|
|
|
|
2,352,605 |
|
|
|
|
|
Uranus Connection Limited |
|
17/F, CITIC Securities Tower No. 48
Liangmaqiao Road, Chaoyang District Beijing, China, 100026
Attention: Yao SUN
Facsimile: +86 (10) 6083-7899
Email: sunyao@citicgs.com |
|
|
2,032,689 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,032,689 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,032,689 |
|
|
|
|
|
* |
The numbers of Company Shares exclude those represented by ADSs. |
Exhibit 11
Execution Version
URANUS
CONNECTION LIMITED
17/F, CITIC Securities Tower
No. 48 Liangmaqiao Road, Chaoyang District
Beijing, China, 100026
Attention:
Yao SUN
Facsimile: +86 (10) 6083-7899
Email: sunyao@citicgs.com
December 15, 2015
MOUNTAIN TIGER
INTERNATIONAL LIMITED
18/F, Tower 1, U-town Office Building,
No.1 San Feng Bei Li, Chaoyang District
Beijing 100020
Peoples Republic of China
Re: Equity
Commitment Letter
Ladies and Gentlemen:
URANUS CONNECTION LIMITED (including its successors or permitted assigns, the Sponsor) is pleased to offer this commitment,
subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in Mountain Tiger International Limited, a newly-formed exempted company with limited liability incorporated under the laws of the Cayman
Islands (Parent). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance
with its terms, the Merger Agreement), by and among Bona Film Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Company), Parent, and Mountain Tiger
Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a wholly-owned subsidiary of Parent (Merger Sub), Merger Sub will merge with and into the Company, with the Company
being the surviving company (the Merger). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Sponsor hereby agrees to contribute, or cause to be contributed, as an equity contribution to Parent, an aggregate
amount equal to $79,904,208.80 (the Contribution), subject to the terms and conditions hereof. The proceeds of the Contribution, along with the amounts to be paid by all other Sponsors (the Other Sponsors) under
their respective Equity Commitment Letters to Parent committing to invest in Parent which are substantially identical to this letter agreement and delivered to Parent concurrently with the delivery of this letter agreement (such aggregate amount,
the Commitments), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement and
(ii) pay (or cause to be paid through Parent or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under
the Limited Guarantee given by the Sponsor), in each case, pursuant to and in accordance with the terms of, and
subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter
agreement, the aggregate amount of liability of the Sponsor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof.
2. Closing Conditions. The Sponsors obligation to make the Contribution pursuant to this letter agreement is subject to the
satisfaction, prior to or contemporaneously with the Closing, of the following conditions: (a) the satisfaction or waiver at the Closing of all conditions precedent to the obligations of Parent and Merger Sub to consummate the transactions
contemplated by the Merger Agreement set forth in Article VII thereof, (b) the portion of the Equity Financing that is to be funded by the Other Sponsors pursuant to the other Equity Commitment Letters dated as of the date hereof has been
funded (or will be funded substantially concurrently if the Contribution is funded by the Sponsor), and (c) either the contemporaneous consummation of the Closing or the obtaining by the Company in accordance with the terms and conditions of
Section 9.6(b) of the Merger Agreement of an Order requiring Parent to cause the Equity Financing to be funded and to consummate the Merger.
3. Enforcement/Recourse. Except as specifically contemplated by Section 9.6(b) of the Merger Agreement, neither Parent nor Merger
Sub shall have any right to enforce this letter agreement; provided that, to the extent the Company has obtained an order of specific performance pursuant to, and subject to the conditions in, Section 9.6(b) of the Merger Agreement, the
Company is hereby made a third party beneficiary of the rights granted to Parent hereby and shall be entitled to specific performance to cause the Contribution to be funded (for the avoidance of doubt, subject to the satisfaction of the conditions
set forth in Section 2 of this letter agreement). Concurrently with the execution and delivery of this letter agreement, the Sponsor is executing and delivering to the Company a Limited Guarantee (the Limited Guarantee) in
accordance with the Merger Agreement. The Companys (i) remedies against the Sponsor and the Other Sponsors under their respective Limited Guarantees, (ii) rights as a third party beneficiary as set forth in the proviso in the first
sentence of this Section 3 and (iii) remedies against Parent under the Merger Agreement shall, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Sponsor, any Affiliate of
the Sponsor, any former, current or future director, officer, employee or agent of the Sponsor or of its Affiliates, any former, current or future holder of any equity interests or securities of the Sponsor (whether such holder is a limited or
general partner, member, manager, stockholder or otherwise), any former, current or future assignee of the Sponsor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder,
Affiliate, controlling person, representative or assignee of any of the foregoing (each such person or entity, a Related Person) in respect of any liabilities or obligations arising under, or in connection with, this letter
agreement or the Merger Agreement or the transactions contemplated thereby, including without limitation in the event Parent breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Sponsors breach of
its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of Parent to consummate the Merger in accordance with, and subject to the terms and conditions
set forth in, Section 9.6(b) of the Merger Agreement, and the Sponsor shall have made the Contribution (and all Other Sponsors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person
(including, without limitation, the Companys equityholders, Affiliates and Subsidiaries) shall have any remedy against the Sponsor or any Related Person, including under the Limited Guarantee. Notwithstanding anything that may be expressed or
implied in this letter agreement, by its acceptance hereof,
- 2 -
Parent acknowledges and agrees that (a) notwithstanding that the Sponsor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in
connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal
liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by
reason of such obligations or by their creation. In no event shall this letter agreement or the Contribution herein be enforced by any Person unless each of the unfunded other Equity Commitment Letters dated as of the date hereof is being
concurrently enforced by such Person.
4. Expiration. All obligations under this letter agreement shall expire and terminate
automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the
Contribution by the Sponsor or its assigns, (d) the Company or any of its Affiliates, directly or indirectly, asserting any claim against (i) the Sponsor under the Limited Guarantee or any Other Sponsor under the other Limited Guarantees
or (ii) the Sponsor or any Related Person of the Sponsor (other than Parent and Merger Sub), any Other Sponsor or any Related Person of any Other Sponsor (other than Parent and Merger Sub), in each case, in connection with the Merger Agreement
or any of the transactions contemplated thereby (other than a claim seeking an order of specific performance of the Sponsors obligation to make the Contribution in the circumstances provided for in Section 3), and
(e) July 1, 2016; provided that, in the event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy
against Parent or Merger Sub under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall not terminate under clause (e) until any such claim has been resolved in a final non-appealable decision by a court of
competent jurisdiction.
5. No Assignment. Neither this letter agreement nor any of the rights, interests or obligations hereunder
shall be assignable without the prior written consent of the Sponsor (in the case of an assignment by Parent) or Parent (in the case of an assignment by the Sponsor), except that, without the prior written consent of Parent, the rights, interests or
obligations under this letter agreement may be assigned and/or delegated, in whole or in part, by Sponsor to one or more of its Affiliates or to one or more private equity funds sponsored or managed by any such Affiliate. Any purported assignment of
this commitment in contravention of this Section 5 shall be void.
6. No Other Beneficiaries. Except for the third
party beneficiary rights provided to the Company under Section 3 of this letter agreement, this letter agreement shall be binding on the Sponsor solely for the benefit of Parent, and nothing set forth in this letter agreement is intended
to or shall confer upon or give to any Person other than Parent (but solely at the direction of the Sponsor as contemplated hereby) any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the
Contribution or any provisions of this letter agreement; provided, that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for
the benefit of any Related Person (including the provisions of Sections 3, 6, 9, 10 and 12), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the
foregoing, Neither Parents, Merger Subs nor the Companys creditors shall have the right to enforce this letter agreement or to cause Parent to enforce this letter agreement.
- 3 -
7. Representations and Warranties. The Sponsor hereby represents and warrants that:
(a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Sponsor has been duly and validly authorized and approved by all
necessary action, and no other proceedings or actions on the part of the Sponsor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of
it, enforceable against the Sponsor in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors rights generally and
(ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by the Sponsor of this letter agreement do not and will not violate the organizational documents of
the Sponsor or any applicable Law or conflict with any material agreement binding on the Sponsor; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the due
execution, delivery and performance of this letter agreement by the Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity is
required in connection with the execution, delivery or performance of this letter agreement; (f) for so long as this letter agreement shall remain in effect in accordance with its terms, the Sponsor or its Affiliate shall have the cash on hand
and/or capital commitments required to fund the Contribution; and (g) where applicable, the amount of the Contribution is less than the maximum cumulative amount (if any) permitted to be invested collectively by the Sponsor and its Affiliate in
any one portfolio investment pursuant to the terms of their respective constituent documents.
8. Severability. Any term or
provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 6, 9 and 10 hereof. No party hereto shall assert, and each party
hereto shall cause its respective Affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
9. Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this letter agreement, including any
dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty
(30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions
of this Section 9. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue
of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number,
and one arbitrator shall
- 4 -
be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating
their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators
have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the
proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto
otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made)
shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall
continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any
arbitration award rendered in accordance with the provisions of this Section 9 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against
which the award has been rendered or the assets of such party wherever the same may be located.
10. Waiver of Jury Trial. EACH OF
THE PARTIES TO THIS LETTER AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 10.
11. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no
substantive or interpretive effect whatsoever.
12. Governing Law. This letter agreement and the obligations hereunder shall be
governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another
jurisdiction.
13. Entire Agreement; Amendment; Counterparts. This letter agreement, the Limited Guarantee, the other Equity
Commitment Letters, the other Limited Guarantees, the Merger Agreement and any other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior
agreements, understandings and statements, both written and oral, between or among Parent or any of its Affiliates, on the one hand, and the Sponsor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended
or waived if, and only if, such amendment or waiver is in writing and signed by the Sponsor and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Companys rights set forth in the
proviso of the first sentence of Section 3 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted
signature
- 5 -
pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
- 6 -
|
|
|
Very truly yours, |
|
URANUS CONNECTION LIMITED |
|
|
By: |
|
/s/ Yao SUN |
Name: |
|
Yao SUN |
Title: |
|
Chief Executive Officer |
SIGNATURE PAGE TO EQUITY
COMMITMENT LETTER
|
|
|
Agreed to and accepted as of the date first written above: |
|
MOUNTAIN TIGER INTERNATIONAL LIMITED |
|
|
By: |
|
/s/ Dong YU |
Name: |
|
Dong YU |
Title: |
|
Director |
SIGNATURE PAGE TO EQUITY
COMMITMENT LETTER
Exhibit 12
Execution Version
ALIBABA
PICTURES GROUP LIMITED
26/F, Tower One, Times Square
1 Matheson Street, Causeway Bay, Hong Kong
Attention: Ms. Karen Xu / Mr. William Ng
Fax: +852 2215 5200
Email:
karen.xu@alibabapictures.com / william.ng@alibaba-inc.com
December 15, 2015
MOUNTAIN TIGER INTERNATIONAL LIMITED
18/F, Tower 1, U-town
Office Building,
No.1 San Feng Bei Li, Chaoyang District
Beijing 100020
Peoples Republic of China
Re: Equity Commitment Letter
Ladies and
Gentlemen:
ALIBABA PICTURES GROUP LIMITED (including its successors or permitted assigns, the Sponsor) is pleased to
offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in Mountain Tiger International Limited, a newly-formed exempted company with limited liability incorporated under the
laws of the Cayman Islands (Parent). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to
time in accordance with its terms, the Merger Agreement), by and among Bona Film Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Company), Parent,
and Mountain Tiger Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a wholly-owned subsidiary of Parent (Merger Sub), Merger Sub will merge with and into the Company,
with the Company being the surviving company (the Merger). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Sponsor hereby agrees to contribute, or cause to be contributed, as an equity contribution to Parent, an aggregate
amount equal to $85,982,898.80 (the Contribution), subject to the terms and conditions hereof. The proceeds of the Contribution, along with the amounts to be paid by all other Sponsors (the Other Sponsors) under
their respective Equity Commitment Letters to Parent committing to invest in Parent which are substantially identical to this letter agreement and delivered to Parent concurrently with the delivery of this letter agreement (such aggregate amount,
the Commitments), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement and
(ii) pay (or cause to be paid through Parent or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under
the Limited Guarantee given by the Sponsor), in each case, pursuant to and in accordance with the terms of, and
subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Sponsor under this letter
agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof.
2. Closing Conditions. The Sponsors obligation to make the Contribution pursuant to this letter agreement is subject to the
satisfaction, prior to or contemporaneously with the Closing, of the following conditions: (a) the satisfaction or waiver at the Closing of all conditions precedent to the obligations of Parent and Merger Sub to consummate the transactions
contemplated by the Merger Agreement set forth in Article VII thereof, (b) the portion of the Equity Financing that is to be funded by the Other Sponsors pursuant to the other Equity Commitment Letters dated as of the date hereof has been
funded (or will be funded substantially concurrently if the Contribution is funded by the Sponsor), and (c) either the contemporaneous consummation of the Closing or the obtaining by the Company in accordance with the terms and conditions of
Section 9.6(b) of the Merger Agreement of an Order requiring Parent to cause the Equity Financing to be funded and to consummate the Merger.
3. Enforcement/Recourse. Except as specifically contemplated by Section 9.6(b) of the Merger Agreement, neither Parent nor Merger
Sub shall have any right to enforce this letter agreement; provided that, to the extent the Company has obtained an order of specific performance pursuant to, and subject to the conditions in, Section 9.6(b) of the Merger Agreement, the
Company is hereby made a third party beneficiary of the rights granted to Parent hereby and shall be entitled to specific performance to cause the Contribution to be funded (for the avoidance of doubt, subject to the satisfaction of the conditions
set forth in Section 2 of this letter agreement). Concurrently with the execution and delivery of this letter agreement, the Sponsor is executing and delivering to the Company a Limited Guarantee (the Limited Guarantee) in
accordance with the Merger Agreement. The Companys (i) remedies against the Sponsor and the Other Sponsors under their respective Limited Guarantees, (ii) rights as a third party beneficiary as set forth in the proviso in the first
sentence of this Section 3 and (iii) remedies against Parent under the Merger Agreement shall, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Sponsor, any Affiliate of
the Sponsor, any former, current or future director, officer, employee or agent of the Sponsor or of its Affiliates, any former, current or future holder of any equity interests or securities of the Sponsor (whether such holder is a limited or
general partner, member, manager, stockholder or otherwise), any former, current or future assignee of the Sponsor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder,
Affiliate, controlling person, representative or assignee of any of the foregoing (each such person or entity, a Related Person) in respect of any liabilities or obligations arising under, or in connection with, this letter
agreement or the Merger Agreement or the transactions contemplated thereby, including without limitation in the event Parent breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Sponsors breach of
its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of Parent to consummate the Merger in accordance with, and subject to the terms and conditions
set forth in, Section 9.6(b) of the Merger Agreement, and the Sponsor shall have made the Contribution (and all Other Sponsors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person
(including, without limitation, the Companys equityholders, Affiliates and Subsidiaries) shall have any remedy against the Sponsor or any Related Person, including under the Limited Guarantee. Notwithstanding anything that may be expressed or
implied in this letter agreement, by its acceptance hereof,
-2-
Parent acknowledges and agrees that (a) notwithstanding that the Sponsor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in
connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal
liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by
reason of such obligations or by their creation. In no event shall this letter agreement or the Contribution herein be enforced by any Person unless each of the unfunded other Equity Commitment Letters dated as of the date hereof is being
concurrently enforced by such Person.
4. Expiration. All obligations under this letter agreement shall expire and terminate
automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the
Contribution by the Sponsor or its assigns, (d) the Company or any of its Affiliates, directly or indirectly, asserting any claim against (i) the Sponsor under the Limited Guarantee or any Other Sponsor under the other Limited Guarantees
or (ii) the Sponsor or any Related Person of the Sponsor (other than Parent and Merger Sub), any Other Sponsor or any Related Person of any Other Sponsor (other than Parent and Merger Sub), in each case, in connection with the Merger Agreement
or any of the transactions contemplated thereby (other than a claim seeking an order of specific performance of the Sponsors obligation to make the Contribution in the circumstances provided for in Section 3), and
(e) July 1, 2016; provided that, in the event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy
against Parent or Merger Sub under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall not terminate under clause (e) until any such claim has been resolved in a final non-appealable decision by a court of
competent jurisdiction.
5. No Assignment. Neither this letter agreement nor any of the rights, interests or obligations hereunder
shall be assignable without the prior written consent of the Sponsor (in the case of an assignment by Parent) or Parent (in the case of an assignment by the Sponsor), except that, without the prior written consent of Parent, the rights, interests or
obligations under this letter agreement may be assigned and/or delegated, in whole or in part, by Sponsor to one or more of its Affiliates or to one or more private equity funds sponsored or managed by any such Affiliate. Any purported assignment of
this commitment in contravention of this Section 5 shall be void.
6. No Other Beneficiaries. Except for the third
party beneficiary rights provided to the Company under Section 3 of this letter agreement, this letter agreement shall be binding on the Sponsor solely for the benefit of Parent, and nothing set forth in this letter agreement is intended
to or shall confer upon or give to any Person other than Parent (but solely at the direction of the Sponsor as contemplated hereby) any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the
Contribution or any provisions of this letter agreement; provided, that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the
benefit of any Related Person (including the provisions of Sections 3, 6, 9, 10 and 12), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the
foregoing, Neither Parents, Merger Subs nor the Companys creditors shall have the right to enforce this letter agreement or to cause Parent to enforce this letter agreement.
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7. Representations and Warranties. The Sponsor hereby represents and warrants that:
(a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Sponsor has been duly and validly authorized and approved by all
necessary action, and no other proceedings or actions on the part of the Sponsor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of
it, enforceable against the Sponsor in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors rights generally and
(ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by the Sponsor of this letter agreement do not and will not violate the organizational documents of
the Sponsor or any applicable Law or conflict with any material agreement binding on the Sponsor; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the due
execution, delivery and performance of this letter agreement by the Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity is
required in connection with the execution, delivery or performance of this letter agreement; (f) for so long as this letter agreement shall remain in effect in accordance with its terms, the Sponsor or its Affiliate shall have the cash on hand
and/or capital commitments required to fund the Contribution; and (g) where applicable, the amount of the Contribution is less than the maximum cumulative amount (if any) permitted to be invested collectively by the Sponsor and its Affiliate in
any one portfolio investment pursuant to the terms of their respective constituent documents.
8. Severability. Any term or
provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the
remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 6, 9 and 10 hereof. No party hereto shall assert, and each party
hereto shall cause its respective Affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
9. Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this letter agreement, including any
dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty
(30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions
of this Section 9. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue
of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number,
and one arbitrator shall
-4-
be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so
chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a
third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal,
the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence
submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is
rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their
remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this
Section 9 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever
the same may be located.
10. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LETTER AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 10.
11. Headings. Headings
of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
12. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws
of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
13. Entire Agreement; Amendment; Counterparts. This letter agreement, the Limited Guarantee, the other Equity Commitment Letters, the
other Limited Guarantees, the Merger Agreement and any other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and
statements, both written and oral, between or among Parent or any of its Affiliates, on the one hand, and the Sponsor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed by the Sponsor and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Companys rights set forth in the proviso of the first sentence of
Section 3 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature
-5-
pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts
have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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left blank]
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Very truly yours, |
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ALIBABA PICTURES GROUP LIMITED |
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By: |
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/s/ Zhang Qiang |
Name: Zhang Qiang |
Title: Chief Executive Officer |
SIGNATURE PAGE TO EQUITY
COMMITMENT LETTER
|
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Agreed to and accepted as of the date first
written above: |
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MOUNTAIN TIGER INTERNATIONAL LIMITED |
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By: |
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/s/ Dong YU |
Name: Dong YU |
Title: Director |
SIGNATURE PAGE TO EQUITY COMMITMENT
LETTER
Exhibit 13
Execution Version
DONG YU
18/F, Tower 1, U-town Office Building,
No.1 San Feng Bei Li, Chaoyang District
Beijing 100020
Peoples
Republic of China
Facsimile: 86 10 56310828
Email: yudong@bonafilm.cn
December 15, 2015
MOUNTAIN TIGER
INTERNATIONAL LIMITED
18/F, Tower 1, U-town Office Building,
No.1 San Feng Bei Li, Chaoyang District
Beijing 100020
Peoples Republic of China
Re: Equity
Commitment Letter
Ladies and Gentlemen:
Mr. Dong YU (including his permitted assigns, the Sponsor) is pleased to offer this commitment, subject to the terms
and conditions contained herein, to purchase, directly or indirectly, equity interests in Mountain Tiger International Limited, a newly-formed exempted company with limited liability incorporated under the laws of the Cayman Islands
(Parent). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its
terms, the Merger Agreement), by and among Bona Film Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Company), Parent, and Mountain Tiger Limited,
an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a wholly-owned subsidiary of Parent (Merger Sub), Merger Sub will merge with and into the Company, with the Company being the
surviving company (the Merger). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Sponsor hereby agrees to contribute, or cause to be contributed, as an equity contribution to Parent, up to an
aggregate amount equal to $125,697,403.80 (the Contribution), subject to the terms and conditions hereof. The proceeds of the Contribution, along with the amounts to be paid by all other Sponsors (the Other
Sponsors) under their respective Equity Commitment Letters to Parent committing to invest in Parent which are substantially identical to this letter agreement and delivered to Parent concurrently with the delivery of this letter agreement
(such aggregate amount, the Commitments), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger
Agreement and (ii) pay (or cause to be paid through Parent or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent
Termination Fee under the Limited Guarantee given by the Sponsor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the
contrary in this letter agreement, the aggregate amount of liability of the Sponsor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion
of the Contribution that has been funded in accordance with the terms hereof.
2. Closing Conditions. The Sponsors obligation
to make the Contribution pursuant to this letter agreement is subject to the satisfaction, prior to or contemporaneously with the Closing, of the following conditions: (a) the satisfaction or waiver at the Closing of all conditions precedent to
the obligations of Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof, (b) the portion of the Equity Financing that is to be funded by the Other Sponsors pursuant to the
other Equity Commitment Letters dated as of the date hereof has been funded (or will be funded substantially concurrently if the Contribution is funded by the Sponsor), and (c) either the contemporaneous consummation of the Closing or the
obtaining by the Company in accordance with the terms and conditions of Section 9.6(b) of the Merger Agreement of an Order requiring Parent to cause the Equity Financing to be funded and to consummate the Merger.
3. Enforcement/Recourse. Except as specifically contemplated by Section 9.6(b) of the Merger Agreement, neither Parent nor Merger
Sub shall have any right to enforce this letter agreement; provided that, to the extent the Company has obtained an order of specific performance pursuant to, and subject to the conditions in, Section 9.6(b) of the Merger Agreement, the
Company is hereby made a third party beneficiary of the rights granted to Parent hereby and shall be entitled to specific performance to cause the Contribution to be funded (for the avoidance of doubt, subject to the satisfaction of the conditions
set forth in Section 2 of this letter agreement). Concurrently with the execution and delivery of this letter agreement, the Sponsor is executing and delivering to the Company a Limited Guarantee (the Limited Guarantee) in
accordance with the Merger Agreement. The Companys (i) remedies against the Sponsor and the Other Sponsors under their respective Limited Guarantees, (ii) rights as a third party beneficiary as set forth in the proviso in the first
sentence of this Section 3 and (iii) remedies against Parent under the Merger Agreement shall, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Sponsor, any Affiliate of
the Sponsor, any former, current or future director, officer, employee or agent (as applicable) of the Sponsor or of his Affiliates, any former, current or future assignee of the Sponsor or any former, current or future director, officer, employee,
agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of the foregoing (each such Person or entity, a Related Person) in respect of any liabilities or
obligations arising under, or in connection with, this letter agreement or the Merger Agreement or the transactions contemplated thereby, including without limitation in the event Parent breaches its obligations under the Merger Agreement, whether
or not such breach is caused by the Sponsors breach of his obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of Parent to consummate the Merger
in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Sponsor shall have made the Contribution (and all Other Sponsors have funded their Commitments in full and the Effective
Time occurred), then neither the Company nor any other Person (including, without limitation, the Companys equityholders, Affiliates and Subsidiaries) shall have any remedy against the Sponsor or any Related Person, including under the Limited
Guarantee. Notwithstanding anything that may be expressed or implied in this letter agreement, by its acceptance hereof, Parent acknowledges and agrees that (a) notwithstanding that the Sponsor may be a limited liability entity, no recourse
hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of
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any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to,
be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their
creation. In no event shall this letter agreement or the Contribution herein be enforced by any Person unless each of the unfunded other Equity Commitment Letters dated as of the date hereof is being concurrently enforced by such Person.
4. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest
to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Sponsor or his assigns,
(d) the Company or any of its Affiliates, directly or indirectly, asserting any claim against (i) the Sponsor under the Limited Guarantee or any Other Sponsor under the other Limited Guarantees or (ii) the Sponsor or any Related
Person of the Sponsor (other than Parent and Merger Sub), any Other Sponsor or any Related Person of any Other Sponsor (other than Parent and Merger Sub), in each case, in connection with the Merger Agreement or any of the transactions contemplated
thereby (other than a claim seeking an order of specific performance of the Sponsors obligation to make the Contribution in the circumstances provided for in Section 3), and (e) July 1, 2016; provided that, in the
event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against Parent or Merger Sub under Section 9.6(b) of
the Merger Agreement is then pending, this letter agreement shall not terminate under clause (e) until any such claim has been resolved in a final non-appealable decision by a court of competent jurisdiction.
5. No Assignment. Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable without
the prior written consent of the Sponsor (in the case of an assignment by Parent) or Parent (in the case of an assignment by the Sponsor), except that, without the prior written consent of Parent, the rights, interests or obligations under this
letter agreement may be assigned and/or delegated, in whole or in part, by Sponsor to one or more of his Affiliates or to one or more private equity funds sponsored or managed by any such Affiliate. Any purported assignment of this commitment in
contravention of this Section 5 shall be void.
6. No Other Beneficiaries. Except for the third party beneficiary
rights provided to the Company under Section 3 of this letter agreement, this letter agreement shall be binding on the Sponsor solely for the benefit of Parent, and nothing set forth in this letter agreement is intended to or shall
confer upon or give to any Person other than Parent (but solely at the direction of the Sponsor as contemplated hereby) any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the Contribution or
any provisions of this letter agreement; provided, that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of
any Related Person (including the provisions of Sections 3, 6, 9, 10 and 12), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing,
Neither Parents, Merger Subs nor the Companys creditors shall have the right to enforce this letter agreement or to cause Parent to enforce this letter agreement.
- 3 -
7. Representations and Warranties. The Sponsor hereby represents and warrants that:
(a) he has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Sponsor has been duly and validly authorized and approved by all
necessary action, and no other proceedings or actions on the part of the Sponsor are necessary therefor, (c) this letter agreement has been duly and validly executed and delivered by him and constitutes a valid and legally binding obligation of
him, enforceable against the Sponsor in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors rights generally and
(ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by the Sponsor of this letter agreement do not and will not violate any applicable Law or conflict
with any material agreement binding on the Sponsor; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the due execution, delivery and performance of this letter
agreement by the Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or
performance of this letter agreement; (f) for so long as this letter agreement shall remain in effect in accordance with its terms, the Sponsor or his Affiliate shall have the cash on hand and/or capital commitments required to fund the
Contribution; and (g) where applicable, the amount of the Contribution is less than the maximum cumulative amount (if any) permitted to be invested collectively by the Sponsor and his Affiliate in any one portfolio investment pursuant to the
terms of their respective constituent documents.
8. Severability. Any term or provision of this letter agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms
and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this
letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 6, 9 and 10 hereof. No party hereto shall assert, and each party hereto shall cause its/his respective Affiliates not to
assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
9. Jurisdiction. In the event any
dispute arises among the parties hereto out of or in relation to this letter agreement, including any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly
consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand
that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 9. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre
(HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the
HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from
nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose
- 4 -
a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the
presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers,
and any Person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without
limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the
parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter
agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 9 shall be final and binding upon them,
and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located.
10. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LETTER AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 10.
11. Headings. Headings of the Sections of this
letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
12.
Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of
conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
13.
Entire Agreement; Amendment; Counterparts. This letter agreement, the Limited Guarantee, the other Equity Commitment Letters, the other Limited Guarantees, the Merger Agreement and any other document contemplated hereby and thereby constitute
the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Parent or any of its Affiliates, on the one hand, and the
Sponsor or any of his Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Sponsor and Parent; provided that any amendment,
waiver or modification that would be expected to be adverse to the Companys rights set forth in the proviso of the first sentence of Section 3 of this letter agreement shall require the prior written consent of the Company. This
letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument,
and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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Very truly yours, |
|
Dong YU
/s/ Dong YU |
SIGNATURE PAGE TO EQUITY
COMMITMENT LETTER
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Agreed to and accepted as of the date first written above: |
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MOUNTAIN TIGER INTERNATIONAL LIMITED |
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By: |
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/s/ Dong YU |
Name: Dong YU |
Title: Director |
SIGNATURE PAGE TO EQUITY COMMITMENT
LETTER
Exhibit 14
Execution Version
ORIENTAL
POWER HOLDINGS LIMITED
29F, Three Pacific Place, No. 1 Queens Road East
Wanchai, Hong Kong
Attention:
Compliance and Transactions Department
Facsimile: 852 2520 1148
Email: legalnotice@tencent.com
with a copy to
Tencent Building,
Keji Zhongyi Avenue
Hi-tech Park, Nanshan District
Shenzhen 518057, PRC
Attention:
Mergers and Acquisitions Department
Email: PD_Support@tencent.com
December 15, 2015
MOUNTAIN TIGER
INTERNATIONAL LIMITED
18/F, Tower 1, U-town Office Building,
No.1 San Feng Bei Li, Chaoyang District
Beijing 100020
Peoples Republic of China
Re: Equity
Commitment Letter
Ladies and Gentlemen:
ORIENTAL POWER HOLDINGS LIMITED (including its successors or permitted assigns, the Sponsor) is pleased to offer this
commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in Mountain Tiger International Limited, a newly-formed exempted company with limited liability incorporated under the laws of
the Cayman Islands (Parent). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in
accordance with its terms, the Merger Agreement), by and among Bona Film Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Company), Parent, and
Mountain Tiger Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a wholly-owned subsidiary of Parent (Merger Sub), Merger Sub will merge with and into the Company, with
the Company being the surviving company (the Merger). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Sponsor hereby agrees to contribute, or cause to be contributed, as an equity contribution to Parent, an aggregate
amount equal to $60,188,018.20 (the Contribution), subject to the terms and conditions hereof. The proceeds of the Contribution, along with the amounts to be paid by all other Sponsors (the Other Sponsors) under
their respective Equity Commitment Letters to Parent committing to invest in Parent
which are substantially identical to this letter agreement and delivered to Parent concurrently with the delivery
of this letter agreement (such aggregate amount, the Commitments), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded) a portion of the Exchange Fund and any other amounts required to be paid
pursuant to the Merger Agreement and (ii) pay (or cause to be paid through Parent or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with
respect to a Parent Termination Fee under the Limited Guarantee given by the Sponsor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the
contrary in this letter agreement, the aggregate amount of liability of the Sponsor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance
with the terms hereof.
2. Closing Conditions. The Sponsors obligation to make the Contribution pursuant to this letter
agreement is subject to the satisfaction, prior to or contemporaneously with the Closing, of the following conditions: (a) the satisfaction or waiver at the Closing of all conditions precedent to the obligations of Parent and Merger Sub to
consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof, (b) the portion of the Equity Financing that is to be funded by the Other Sponsors pursuant to the other Equity Commitment Letters dated as of
the date hereof has been funded (or will be funded substantially concurrently if the Contribution is funded by the Sponsor), and (c) either the contemporaneous consummation of the Closing or the obtaining by the Company in accordance with the
terms and conditions of Section 9.6(b) of the Merger Agreement of an Order requiring Parent to cause the Equity Financing to be funded and to consummate the Merger.
3. Enforcement/Recourse. Except as specifically contemplated by Section 9.6(b) of the Merger Agreement, neither Parent nor Merger
Sub shall have any right to enforce this letter agreement; provided that, to the extent the Company has obtained an order of specific performance pursuant to, and subject to the conditions in, Section 9.6(b) of the Merger Agreement, the
Company is hereby made a third party beneficiary of the rights granted to Parent hereby and shall be entitled to specific performance to cause the Contribution to be funded (for the avoidance of doubt, subject to the satisfaction of the conditions
set forth in Section 2 of this letter agreement). Concurrently with the execution and delivery of this letter agreement, the Sponsor is executing and delivering to the Company a Limited Guarantee (the Limited Guarantee) in
accordance with the Merger Agreement. The Companys (i) remedies against the Sponsor and the Other Sponsors under their respective Limited Guarantees, (ii) rights as a third party beneficiary as set forth in the proviso in the first
sentence of this Section 3 and (iii) remedies against Parent under the Merger Agreement shall, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Sponsor, any Affiliate of
the Sponsor, any former, current or future director, officer, employee or agent of the Sponsor or of its Affiliates, any former, current or future holder of any equity interests or securities of the Sponsor (whether such holder is a limited or
general partner, member, manager, stockholder or otherwise), any former, current or future assignee of the Sponsor or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder,
Affiliate, controlling person, representative or assignee of any of the foregoing (each such person or entity, a Related Person) in respect of any liabilities or obligations arising under, or in connection with, this letter
agreement or the Merger Agreement or the transactions contemplated thereby, including without limitation in the event Parent breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Sponsors breach of
its obligations under this letter agreement; provided that, in the event
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the Company successfully compels specific performance of the obligations of Parent to consummate the Merger in
accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Sponsor shall have made the Contribution (and all Other Sponsors have funded their Commitments in full and the Effective Time
occurred), then neither the Company nor any other Person (including, without limitation, the Companys equityholders, Affiliates and Subsidiaries) shall have any remedy against the Sponsor or any Related Person, including under the Limited
Guarantee. Notwithstanding anything that may be expressed or implied in this letter agreement, by its acceptance hereof, Parent acknowledges and agrees that (a) notwithstanding that the Sponsor may be a limited liability entity, no recourse
hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute,
regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in
connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation. In no event shall this letter agreement or the Contribution herein be enforced by any Person unless each of the unfunded other Equity
Commitment Letters dated as of the date hereof is being concurrently enforced by such Person.
4. Expiration. All obligations under
this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution
shall be discharged), (c) the making of the Contribution by the Sponsor or its assigns, (d) the Company or any of its Affiliates, directly or indirectly, asserting any claim against (i) the Sponsor under the Limited Guarantee or any
Other Sponsor under the other Limited Guarantees or (ii) the Sponsor or any Related Person of the Sponsor (other than Parent and Merger Sub), any Other Sponsor or any Related Person of any Other Sponsor (other than Parent and Merger Sub), in
each case, in connection with the Merger Agreement or any of the transactions contemplated thereby (other than a claim seeking an order of specific performance of the Sponsors obligation to make the Contribution in the circumstances provided
for in Section 3), and (e) July 1, 2016; provided that, in the event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific
performance or other equitable remedy against Parent or Merger Sub under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall not terminate under clause (e) until any such claim has been resolved in a final
non-appealable decision by a court of competent jurisdiction.
5. No Assignment. Neither this letter agreement nor any of the
rights, interests or obligations hereunder shall be assignable without the prior written consent of the Sponsor (in the case of an assignment by Parent) or Parent (in the case of an assignment by the Sponsor), except that, without the prior written
consent of Parent, the rights, interests or obligations under this letter agreement may be assigned and/or delegated, in whole or in part, by Sponsor to one or more of its Affiliates or to one or more private equity funds sponsored or managed by any
such Affiliate. Any purported assignment of this commitment in contravention of this Section 5 shall be void.
6. No Other
Beneficiaries. Except for the third party beneficiary rights provided to the Company under Section 3 of this letter agreement, this letter agreement shall be binding on the Sponsor solely for the benefit of Parent, and nothing set
forth in this letter agreement is
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intended to or shall confer upon or give to any Person other than Parent (but solely at the direction of the
Sponsor as contemplated hereby) any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the Contribution or any provisions of this letter agreement; provided, that, notwithstanding anything
to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 6, 9,
10 and 12), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, Neither Parents, Merger Subs nor the Companys creditors shall have the right to
enforce this letter agreement or to cause Parent to enforce this letter agreement.
7. Representations and Warranties. The Sponsor
hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Sponsor has been duly and validly
authorized and approved by all necessary action, and no other proceedings or actions on the part of the Sponsor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and
legally binding obligation of it, enforceable against the Sponsor in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting
creditors rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by the Sponsor of this letter agreement do not and will not
violate the organizational documents of the Sponsor or any applicable Law or conflict with any material agreement binding on the Sponsor; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any
Governmental Entity necessary for the due execution, delivery and performance of this letter agreement by the Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or
filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement; (f) for so long as this letter agreement shall remain in effect in accordance with its terms, the Sponsor or
its Affiliate shall have the cash on hand and/or capital commitments required to fund the Contribution; and (g) where applicable, the amount of the Contribution is less than the maximum cumulative amount (if any) permitted to be invested
collectively by the Sponsor and its Affiliate in any one portfolio investment pursuant to the terms of their respective constituent documents.
8. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any
jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving
effect to the provisions of Sections 2 through 6, 9 and 10 hereof. No party hereto shall assert, and each party hereto shall cause its respective Affiliates not to assert, that this letter agreement or any part hereof is
invalid, illegal or unenforceable.
9. Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation
to this letter agreement, including any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly
consultations within thirty (30)
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days after any party has served written notice on the other parties requesting the commencement of such
consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 9. The arbitration shall be conducted in accordance with the Hong Kong International
Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing
authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s)
shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30
days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential
and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by
Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an
arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to
arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The
parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 9 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having
jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located.
10.
Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LETTER AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 10.
11. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no
substantive or interpretive effect whatsoever.
12. Governing Law. This letter agreement and the obligations hereunder shall be
governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another
jurisdiction.
13. Entire Agreement; Amendment; Counterparts. This letter agreement, the Limited Guarantee, the other Equity
Commitment Letters, the other Limited Guarantees, the Merger Agreement and any other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other
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prior agreements, understandings and statements, both written and oral, between or among Parent or any of its
Affiliates, on the one hand, and the Sponsor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Sponsor and Parent;
provided that any amendment, waiver or modification that would be expected to be adverse to the Companys rights set forth in the proviso of the first sentence of Section 3 of this letter agreement shall require the prior
written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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Very truly yours, |
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ORIENTAL POWER HOLDINGS LIMITED |
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By: |
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/s/ Huateng MA |
Name: |
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Huateng MA |
Title: |
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Director |
SIGNATURE PAGE TO EQUITY
COMMITMENT LETTER
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Agreed to and accepted as of the date first written above: |
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MOUNTAIN TIGER INTERNATIONAL LIMITED |
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By: |
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/s/ Dong YU |
Name: |
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Dong YU |
Title: |
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Director |
SIGNATURE PAGE TO EQUITY COMMITMENT
LETTER
Exhibit 15
Execution Version
ZHANSHAN
XIE
c/o Global Incorporations Limited
Suite 1107, Office Tower C1, Oriental Plaza
No.1 East Chang An Avenue
Beijing
100738, China
Facsimile: +86 10 8525 5544
Email: xie550713@163.com
December 15, 2015
MOUNTAIN TIGER
INTERNATIONAL LIMITED
18/F, Tower 1, U-town Office Building,
No.1 San Feng Bei Li, Chaoyang District
Beijing 100020
Peoples Republic of China
Re: Equity
Commitment Letter
Ladies and Gentlemen:
Mr. Zhanshan XIE (including his permitted assigns, the Sponsor) is pleased to offer this commitment, subject to the
terms and conditions contained herein, to purchase, directly or indirectly, equity interests in Mountain Tiger International Limited, a newly-formed exempted company with limited liability incorporated under the laws of the Cayman Islands
(Parent). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its
terms, the Merger Agreement), by and among Bona Film Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Company), Parent, and Mountain Tiger Limited,
an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a wholly-owned subsidiary of Parent (Merger Sub), Merger Sub will merge with and into the Company, with the Company being the
surviving company (the Merger). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Sponsor hereby agrees to contribute, or cause to be contributed, as an equity contribution to Parent, up to an
aggregate amount equal to $14,204,201.10 (the Contribution), subject to the terms and conditions hereof. The proceeds of the Contribution, along with the amounts to be paid by all other Sponsors (the Other
Sponsors) under their respective Equity Commitment Letters to Parent committing to invest in Parent which are substantially identical to this letter agreement and delivered to Parent concurrently with the delivery of this letter agreement
(such aggregate amount, the Commitments), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger
Agreement and (ii) pay (or cause to be paid through Parent or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent
Termination Fee under the Limited
Guarantee given by the Sponsor), in each case, pursuant to and in accordance with the terms of, and subject to
the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Sponsor under this letter agreement shall at no time exceed the aggregate amount of the
Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof.
2. Closing Conditions.
The Sponsors obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction, prior to or contemporaneously with the Closing, of the following conditions: (a) the satisfaction or waiver at the Closing
of all conditions precedent to the obligations of Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof, (b) the portion of the Equity Financing that is to be funded by the
Other Sponsors pursuant to the other Equity Commitment Letters dated as of the date hereof has been funded (or will be funded substantially concurrently if the Contribution is funded by the Sponsor), and (c) either the contemporaneous
consummation of the Closing or the obtaining by the Company in accordance with the terms and conditions of Section 9.6(b) of the Merger Agreement of an Order requiring Parent to cause the Equity Financing to be funded and to consummate the
Merger.
3. Enforcement/Recourse. Except as specifically contemplated by Section 9.6(b) of the Merger Agreement, neither
Parent nor Merger Sub shall have any right to enforce this letter agreement; provided that, to the extent the Company has obtained an order of specific performance pursuant to, and subject to the conditions in, Section 9.6(b) of the
Merger Agreement, the Company is hereby made a third party beneficiary of the rights granted to Parent hereby and shall be entitled to specific performance to cause the Contribution to be funded (for the avoidance of doubt, subject to the
satisfaction of the conditions set forth in Section 2 of this letter agreement). Concurrently with the execution and delivery of this letter agreement, the Sponsor is executing and delivering to the Company a Limited Guarantee (the
Limited Guarantee) in accordance with the Merger Agreement. The Companys (i) remedies against the Sponsor and the Other Sponsors under their respective Limited Guarantees, (ii) rights as a third party beneficiary
as set forth in the proviso in the first sentence of this Section 3 and (iii) remedies against Parent under the Merger Agreement shall, and are intended to be, the sole and exclusive direct or indirect remedies available to the
Company against the Sponsor, any Affiliate of the Sponsor, any former, current or future director, officer, employee or agent (as applicable) of the Sponsor or of his Affiliates, any former, current or future assignee of the Sponsor or any former,
current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of the foregoing (each such Person or entity, a Related
Person) in respect of any liabilities or obligations arising under, or in connection with, this letter agreement or the Merger Agreement or the transactions contemplated thereby, including without limitation in the event Parent breaches
its obligations under the Merger Agreement, whether or not such breach is caused by the Sponsors breach of his obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of
the obligations of Parent to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Sponsor shall have made the Contribution (and all Other Sponsors have
funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Companys equityholders, Affiliates and Subsidiaries) shall have any remedy against the Sponsor
or any Related Person, including under the Limited Guarantee. Notwithstanding anything that may be expressed or implied in this letter agreement, by its acceptance hereof, Parent acknowledges and agrees that (a) notwithstanding that the Sponsor
may be a limited
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liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith
may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever
will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such
obligations or by their creation. In no event shall this letter agreement or the Contribution herein be enforced by any Person unless each of the unfunded other Equity Commitment Letters dated as of the date hereof is being concurrently enforced by
such Person.
4. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately
upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Sponsor or
his assigns, (d) the Company or any of its Affiliates, directly or indirectly, asserting any claim against (i) the Sponsor under the Limited Guarantee or any Other Sponsor under the other Limited Guarantees or (ii) the Sponsor or any
Related Person of the Sponsor (other than Parent and Merger Sub), any Other Sponsor or any Related Person of any Other Sponsor (other than Parent and Merger Sub), in each case, in connection with the Merger Agreement or any of the transactions
contemplated thereby (other than a claim seeking an order of specific performance of the Sponsors obligation to make the Contribution in the circumstances provided for in Section 3), and (e) July 1, 2016; provided
that, in the event a claim by the Company or any of its Affiliates under Section 3 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against Parent or Merger Sub under
Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall not terminate under clause (e) until any such claim has been resolved in a final non-appealable decision by a court of competent jurisdiction.
5. No Assignment. Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable without
the prior written consent of the Sponsor (in the case of an assignment by Parent) or Parent (in the case of an assignment by the Sponsor), except that, without the prior written consent of Parent, the rights, interests or obligations under this
letter agreement may be assigned and/or delegated, in whole or in part, by Sponsor to one or more of his Affiliates or to one or more private equity funds sponsored or managed by any such Affiliate. Any purported assignment of this commitment in
contravention of this Section 5 shall be void.
6. No Other Beneficiaries. Except for the third party beneficiary
rights provided to the Company under Section 3 of this letter agreement, this letter agreement shall be binding on the Sponsor solely for the benefit of Parent, and nothing set forth in this letter agreement is intended to or shall
confer upon or give to any Person other than Parent (but solely at the direction of the Sponsor as contemplated hereby) any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the Contribution or
any provisions of this letter agreement; provided, that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of
any Related Person (including the provisions of Sections 3, 6, 9, 10 and 12), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing,
Neither Parents, Merger Subs nor the Companys creditors shall have the right to enforce this letter agreement or to cause Parent to enforce this letter agreement.
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7. Representations and Warranties. The Sponsor hereby represents and warrants that:
(a) he has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Sponsor has been duly and validly authorized and approved by all
necessary action, and no other proceedings or actions on the part of the Sponsor are necessary therefor, (c) this letter agreement has been duly and validly executed and delivered by him and constitutes a valid and legally binding obligation of
him, enforceable against the Sponsor in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors rights generally and
(ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by the Sponsor of this letter agreement do not and will not violate any applicable Law or conflict
with any material agreement binding on the Sponsor; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the due execution, delivery and performance of this letter
agreement by the Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or
performance of this letter agreement; (f) for so long as this letter agreement shall remain in effect in accordance with its terms, the Sponsor or his Affiliate shall have the cash on hand and/or capital commitments required to fund the
Contribution; and (g) where applicable, the amount of the Contribution is less than the maximum cumulative amount (if any) permitted to be invested collectively by the Sponsor and his Affiliate in any one portfolio investment pursuant to the
terms of their respective constituent documents.
8. Severability. Any term or provision of this letter agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms
and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this
letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 6, 9 and 10 hereof. No party hereto shall assert, and each party hereto shall cause its/his respective Affiliates not to
assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
9. Jurisdiction. In the event any
dispute arises among the parties hereto out of or in relation to this letter agreement, including any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly
consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand
that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 9. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre
(HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the
HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall
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be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating
their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators
have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the
proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any Person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto
otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made)
shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall
continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any
arbitration award rendered in accordance with the provisions of this Section 9 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against
which the award has been rendered or the assets of such party wherever the same may be located.
10. Waiver of Jury Trial. EACH OF
THE PARTIES TO THIS LETTER AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY
MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 10.
11. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no
substantive or interpretive effect whatsoever.
12. Governing Law. This letter agreement and the obligations hereunder shall be
governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another
jurisdiction.
13. Entire Agreement; Amendment; Counterparts. This letter agreement, the Limited Guarantee, the other Equity
Commitment Letters, the other Limited Guarantees, the Merger Agreement and any other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior
agreements, understandings and statements, both written and oral, between or among Parent or any of its Affiliates, on the one hand, and the Sponsor or any of his Affiliates, on the other hand. Any provision of this letter agreement may be amended
or waived if, and only if, such amendment or waiver is in writing and signed by the Sponsor and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Companys rights set forth in the
proviso of the first sentence of Section 3 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted
signature
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pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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Very truly yours, |
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Zhanshan XIE |
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/s/ Zhanshan XIE |
SIGNATURE PAGE TO EQUITY
COMMITMENT LETTER
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Agreed to and accepted as of the date first
written above: |
MOUNTAIN TIGER INTERNATIONAL LIMITED |
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By: /s/ Dong YU |
Name: Dong YU |
Title: Director |
SIGNATURE PAGE TO EQUITY COMMITMENT
LETTER
Exhibit 16
Execution Version
LIMITED GUARANTEE
This
Limited Guarantee, dated as of December 15, 2015 (this Limited Guarantee), is made by Uranus Connection Limited, a company incorporated with limited liability under the laws of the British Virgin Islands with its registered
office at NovaSage Chambers, P.O. Box 4389, Road Town, Tortola, British Virgin Islands (including its successors and assigns, the Guarantor), in favor of Bona Film Group Limited, an exempted company with limited liability
incorporated under the laws of the Cayman Islands (the Guaranteed Party). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise
modified from time to time in accordance with its terms, the Merger Agreement), by and among Mountain Tiger International Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands
(Parent), Mountain Tiger Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a subsidiary of Parent (Merger Sub), and the Guaranteed Party. Capitalized
terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee. The
Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, but only up to the Maximum Amount (as defined below), 21.83% of Parents obligation (the
Guaranteed Obligation) to pay to the Guaranteed Party the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement; provided that the maximum aggregate liability of the
Guarantor hereunder shall not exceed $6,549,941.74 (the Maximum Amount), and the Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of
this Limited Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Partys equityholders, Affiliates and/or Subsidiaries) relating to, arising out of or
in connection with this Limited Guarantee, the Merger Agreement or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent or any other Person or whether Parent or any other Person is joined in any such action or actions; provided that no action or actions
may be brought against the Guarantor under this Limited Guarantee unless such action or actions are also brought simultaneously against the guarantor (each, an Other Guarantor) under each other Limited Guarantee dated as of the
date hereof delivered in connection with the Merger Agreement, and the Guaranteed Party shall not release any of the Other Guarantors from any obligations under such other Limited Guarantees or amend or waive any provision of such other Limited
Guarantees except to the extent the Guarantor under this Limited Guarantee is released or the provisions of this Limited Guarantee are amended or waived on terms and conditions no less favorable than those applicable to the other Limited Guarantees.
Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the other Limited Guarantees dated as of the date
hereof delivered in connection with the Merger Agreement shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent
permitted under applicable Laws, be absolute, irrevocable and unconditional, irrespective of:
(i) the value,
genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor and Parent, pursuant to which the Guarantor has agreed to make a certain equity contribution to
Parent (the Equity Commitment Letter) or any other agreement or instrument referred to herein or therein;
(ii) any release or discharge of any obligation of Parent contained in the Merger Agreement resulting from any change in
the corporate existence, structure or ownership of Parent, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or any of its assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or
performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in
respect thereof;
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time
against Parent or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the
failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required
by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining
repayment of the Guaranteed Obligation; or
(vii) any other act or omission that may in any manner or to any extent
vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligation in accordance with its terms);
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are applicable to Parent under the Merger Agreement
or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the
Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the
Guaranteed Party under the terms of, or with respect to, the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement with respect to the Guaranteed Obligation.
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(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual
of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation
shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under
no obligation to pursue such rights and remedies it may have against Parent or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or
remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve
the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Guaranteed Party.
(d) The Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein (except for notices
to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated
to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantors
obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the
Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. The Guaranteed Party acknowledges and agrees that the sole asset of Parent is cash in a de minimis
amount and that no additional funds are expected to be contributed to Parent unless and until the Closing occurs. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in
connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Partys equityholders, Affiliates and
Subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any Affiliate of the Guarantor, any former, current or future director, officer, employee, agent of the Guarantor or its Affiliates, any
former, current or future holder of any Equity Interests of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), any former, current or future assignee of the Guarantor, or any former,
current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of the foregoing (each such Person, a Related
Person), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent against the Guarantor or any Related
Person (except for any claim to compel Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee. Recourse against the Guarantor under
this Limited Guarantee and the Guaranteed Partys third party beneficiary rights under the
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Equity Commitment Letter (as provided in the Merger Agreement) shall be the sole and exclusive remedy of
(i) the Guaranteed Party and (ii) all of the Guaranteed Partys equityholders, Affiliates and Subsidiaries against the Guarantor and any Related Person (other than Parent) in respect of any liabilities or obligations arising under, or
in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a
claim by or on behalf of Parent. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and Subsidiaries not to institute, any proceeding or bring any other claim arising
under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person,
except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee, (B) claims of the Guaranteed Party against Parent or Merger Sub under and in accordance with the Merger Agreement and
(C) the exercise of the Guaranteed Partys third party beneficiary rights under and in accordance with the Equity Commitment Letter (as provided in the Merger Agreement), and the Guaranteed Party hereby, on behalf of itself and its
Affiliates and Subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter or, in each case, the transactions contemplated hereby or thereby against the
Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a Permitted Claim). Nothing set forth in this
Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the
Guarantor, except as expressly set forth herein.
4. Subrogation. The Guarantor will not exercise against Parent any rights of
subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of
Section 1 hereof unless and until the Guaranteed Obligation has been paid in full.
5. Termination. This Limited
Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation, (c) any termination of
Guarantors obligation under the Equity Commitment Letter pursuant to Section 4(c) thereof, and (d) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under
circumstances in which Parent and Merger Sub would not be obligated to pay the Parent Termination Fee in accordance with the Merger Agreement. Notwithstanding the immediately preceding parenthetical, all obligations of the Guarantor hereunder shall
expire automatically three months after the termination of the Merger Agreement for any reason without any further obligations of the Guarantor hereunder, unless a claim for payment of the Guaranteed Obligation is made prior to the end of such
three-month period. In the event that the Guaranteed Party or any of its equityholders, Affiliates or Subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions
hereof (including, without limitation, Section 1 hereof limiting the Guarantors aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its
equityholders, Affiliates and Subsidiaries against the Guarantor or
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any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of
liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this
Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if
the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person shall have any liability to the Guaranteed
Party or any of its equityholders, Affiliates or Subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited
Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation, shall be binding upon the Guarantor, its successors and assigns, and shall inure to the
benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited
Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3, 5, 11, 12 and 15) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the
Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the other Limited Guarantees, the Merger Agreement, the Equity Commitment Letters and any
other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among Parent and/or the Guarantor or any of
their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, and this Limited Guarantee is not intended to and shall not confer upon any Person (including, without limitation, the Guaranteed
Partys equityholders, Affiliates and Subsidiaries) other than the parties hereto and any Related Person any rights or remedies expressly provided herein.
8. Amendments and Waivers. Any provision of this Limited Guarantee 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 the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in
exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature
pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered
(by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder
shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business Day after 5:00 p.m. (addressees local time) shall
be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
17/F, CITIC Securities Tower
No. 48 Liangmaqiao Road, Chaoyang District
Beijing, China, 100026
Attention: Yao SUN
Facsimile:
+86 (10) 6083-7899
Email: sunyao@citicgs.com
with a copy to:
Kirkland & Ellis
26th
Floor, Gloucester Tower, The Landmark
15 Queens Road Central
Hong Kong
Attention: David Zhang
Jesse Sheley
Facsimile: +852-3761-3301
Email: david.zhang@kirkland.com
jesse.sheley@kirkland.com
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee shall be governed by and construed in accordance with the Laws of the State of New York
without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including
any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty
(30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions
of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue
of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s),
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irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If
the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator
within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept
confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any Person necessary for the conduct of the arbitration, unless otherwise
required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact
that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to
arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The
parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having
jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located.
(b)
Service of Process. Each party hereby (i) consents to service of process in any action between the parties arising in whole or in part under or in connection with this Limited Guarantee in any manner permitted by New York law,
(ii) agrees that service of process made in accordance with clause (i) or made by registered or certified mail, return receipt requested, at its address specified pursuant to Section 10, will constitute good and valid service
of process in any such action and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such action any claim that service of process made in accordance with clause (i) or (ii) does not constitute
good and valid service of process.
13. Representations and Warranties. Each of the Guarantor and the Guaranteed Party hereby
represents and warrants to the other party that: (a) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee; (b) the execution, delivery and performance of this Limited Guarantee by it has been duly
and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of such party are necessary therefor; (c) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes
a valid and legally binding obligation of it, enforceable against it in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting
creditors rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by it of this Limited Guarantee do not and will not violate its
organizational documents or violate any applicable Law or conflict with any material agreement binding on it; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the
due execution, delivery and performance of this Limited Guarantee by it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity is required
in connection with the
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execution, delivery or performance of this Limited Guarantee; and (f) for so long as this Limited Guarantee
shall remain in effect in accordance with its terms, the Guarantor or its Affiliates shall have the cash on hand and/or capital commitments required to fund the Guaranteed Obligation.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without
the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this
Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or
provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections
3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective equityholders, Affiliates and Subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
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URANUS CONNECTION LIMITED |
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By: |
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/s/ Yao SUN |
Name: Yao SUN |
Title: Chief Executive Officer |
SIGNATURE PAGE TO LIMITED
GUARANTEE
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
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BONA FILM GROUP LIMITED |
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By: |
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/s/ Daqing Dave Qi |
Name: Daqing Dave Qi |
Title: Chairman of the Independent Committee |
SIGNATURE PAGE TO LIMITED
GUARANTEE
Exhibit 17
LIMITED GUARANTEE
This
Limited Guarantee, dated as of December 15, 2015 (this Limited Guarantee), is made by Alibaba Pictures Group Limited, a company with limited liability incorporated in Bermuda (including its successors and assigns, the
Guarantor), in favor of Bona Film Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Guaranteed Party). Reference is hereby made to the Agreement and
Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the Merger Agreement), by and among Mountain Tiger International
Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (Parent), Mountain Tiger Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands
that is a subsidiary of Parent (Merger Sub), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee. The Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to
the terms and conditions hereof, but only up to the Maximum Amount (as defined below), 23.49% of Parents obligation (the Guaranteed Obligation) to pay to the Guaranteed Party the Parent Termination Fee if and when required
pursuant to Section 8.2(c) of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed $7,048,226.70 (the Maximum Amount), and the Guaranteed Party hereby
agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Limited Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including,
without limitation, to the Guaranteed Partys equityholders, Affiliates and/or Subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement or the Equity Commitment Letter (as defined below) other
than as expressly set forth herein or in the Equity Commitment Letter.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent or any other Person or whether Parent or any other Person is joined in any such action or actions; provided that no action or actions
may be brought against the Guarantor under this Limited Guarantee unless such action or actions are also brought simultaneously against the guarantor (each, an Other Guarantor) under each other Limited Guarantee dated as of the
date hereof delivered in connection with the Merger Agreement, and the Guaranteed Party shall not release any of the Other Guarantors from any obligations under such other Limited Guarantees or amend or waive any provision of such other Limited
Guarantees except to the extent the Guarantor under this Limited Guarantee is released or the provisions of this Limited Guarantee are amended or waived on terms and conditions no less favorable than those applicable to the other Limited Guarantees.
Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the other Limited Guarantees dated as of the date
hereof delivered in connection with the Merger Agreement shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent
permitted under applicable Laws, be absolute, irrevocable and unconditional, irrespective of:
(i) the value,
genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor and Parent, pursuant to which the Guarantor has agreed to make a certain equity contribution to
Parent (the Equity Commitment Letter) or any other agreement or instrument referred to herein or therein;
(ii) any release or discharge of any obligation of Parent contained in the Merger Agreement resulting from any change in
the corporate existence, structure or ownership of Parent, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or any of its assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or
performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in
respect thereof;
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time
against Parent or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the
failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required
by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining
repayment of the Guaranteed Obligation; or
(vii) any other act or omission that may in any manner or to any extent
vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligation in accordance with its terms);
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are applicable to Parent under the Merger Agreement
or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the
Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the
Guaranteed Party under the terms of, or with respect to, the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement with respect to the Guaranteed Obligation.
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(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual
of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation
shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under
no obligation to pursue such rights and remedies it may have against Parent or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or
remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve
the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Guaranteed Party.
(d) The Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein (except for notices
to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated
to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantors
obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the
Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. The Guaranteed Party acknowledges and agrees that the sole asset of Parent is cash in a de minimis amount
and that no additional funds are expected to be contributed to Parent unless and until the Closing occurs. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection
herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Partys equityholders, Affiliates and Subsidiaries)
has any right of recovery against, and no personal liability shall attach to, the Guarantor, any Affiliate of the Guarantor, any former, current or future director, officer, employee, agent of the Guarantor or its Affiliates, any former, current or
future holder of any Equity Interests of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), any former, current or future assignee of the Guarantor, or any former, current or future
director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of the foregoing (each such Person, a Related Person), through Parent
or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent against the Guarantor or any Related Person (except for any claim to
compel Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee. Recourse against the Guarantor under this Limited Guarantee and the
Guaranteed Partys third party beneficiary rights under the
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Equity Commitment Letter (as provided in the Merger Agreement) shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Partys
equityholders, Affiliates and Subsidiaries against the Guarantor and any Related Person (other than Parent) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity
Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of Parent. The Guaranteed Party hereby covenants and
agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and Subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement,
the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under
and in accordance with this Limited Guarantee, (B) claims of the Guaranteed Party against Parent or Merger Sub under and in accordance with the Merger Agreement and (C) the exercise of the Guaranteed Partys third party beneficiary
rights under and in accordance with the Equity Commitment Letter (as provided in the Merger Agreement), and the Guaranteed Party hereby, on behalf of itself and its Affiliates and Subsidiaries, waives any and all claims arising under, or in
connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in
each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a Permitted Claim). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to
any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
4. Subrogation. The Guarantor will not exercise against Parent any rights of subrogation or contribution, whether arising by contract
or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed
Obligation has been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further
obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation, (c) any termination of Guarantors obligation under the Equity Commitment Letter pursuant to
Section 4(c) thereof, and (d) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under circumstances in which Parent and Merger Sub would not be obligated to pay the
Parent Termination Fee in accordance with the Merger Agreement. Notwithstanding the immediately preceding parenthetical, all obligations of the Guarantor hereunder shall expire automatically three months after the termination of the Merger Agreement
for any reason without any further obligations of the Guarantor hereunder, unless a claim for payment of the Guaranteed Obligation is made prior to the end of such three-month period. In the event that the Guaranteed Party or any of its
equityholders, Affiliates or Subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof
limiting the Guarantors aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and Subsidiaries against the Guarantor or
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any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the
other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any
Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be
entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or Subsidiaries with respect to the Merger
Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
6. Continuing Guarantee. Except to
the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed
Obligation, shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that
notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3, 5, 11, 12 and 15)
shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed
to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the other Limited Guarantees, the Merger
Agreement, the Equity Commitment Letters and any other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and
oral, among Parent and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, and this Limited Guarantee is not intended to and shall not confer upon any Person
(including, without limitation, the Guaranteed Partys equityholders, Affiliates and Subsidiaries) other than the parties hereto and any Related Person any rights or remedies expressly provided herein.
8. Amendments and Waivers. Any provision of this Limited Guarantee 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 the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in
exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature
pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered
(by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder
shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business Day after 5:00 p.m. (addressees local time) shall
be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
26/F, Tower One, Times Square
1
Matheson Street, Causeway Bay, Hong Kong
Attention: Ms. Karen Xu / Mr. William Ng
Facsimile: +852 2215 5200
Email: karen.xu@alibabapictures.com / william.ng@alibaba-inc.com
with a copy to:
Kirkland & Ellis
26th
Floor, Gloucester Tower, The Landmark
15 Queens Road Central
Hong Kong
Attention: David Zhang
Jesse Sheley
Facsimile: +852-3761-3301
Email:
david.zhang@kirkland.com
jesse.sheley@kirkland.com
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee shall be governed by and construed in accordance with the Laws of the State of New York
without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including
any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty
(30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions
of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue
of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number,
and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the
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HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days
after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and
that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any Person necessary for the conduct of the arbitration, unless otherwise required by Law
or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an
arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to
arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The
parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having
jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located.
(b)
Service of Process. Each party hereby (i) consents to service of process in any action between the parties arising in whole or in part under or in connection with this Limited Guarantee in any manner permitted by New York law,
(ii) agrees that service of process made in accordance with clause (i) or made by registered or certified mail, return receipt requested, at its address specified pursuant to Section 10, will constitute good and valid service
of process in any such action and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such action any claim that service of process made in accordance with clause (i) or (ii) does not constitute
good and valid service of process.
13. Representations and Warranties. Each of the Guarantor and the Guaranteed Party hereby
represents and warrants to the other party that: (a) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee; (b) the execution, delivery and performance of this Limited Guarantee by it has been duly
and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of such party are necessary therefor; (c) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes
a valid and legally binding obligation of it, enforceable against it in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting
creditors rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by it of this Limited Guarantee do not and will not violate its
organizational documents or violate any applicable Law or conflict with any material agreement binding on it; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the
due execution, delivery and performance of this Limited Guarantee by it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity is required
in connection with the execution, delivery or performance of this Limited Guarantee; and (f) for so long as this Limited Guarantee shall remain in effect in accordance with its terms, the Guarantor or its Affiliates shall have the cash on hand
and/or capital commitments required to fund the Guaranteed Obligation.
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14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or
obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this
Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or
provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3
and 5 hereof. No party hereto shall assert, and each party shall cause its respective equityholders, Affiliates and Subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
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ALIBABA PICTURES GROUP LIMITED |
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By: |
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/s/ Zhang Qiang |
Name: Zhang Qiang |
Title: Chief Executive Officer |
SIGNATURE PAGE TO LIMITED
GUARANTEE
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
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BONA FILM GROUP LIMITED |
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By: |
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/s/ Daqing Dave Qi |
Name: Daqing Dave Qi |
Title: Chairman of the Independent Committee |
SIGNATURE PAGE TO LIMITED
GUARANTEE
Exhibit 18
Execution Version
LIMITED GUARANTEE
This
Limited Guarantee, dated as of December 15, 2015 (this Limited Guarantee), is made by Mr. Dong YU (including his assigns, the Guarantor), in favor of Bona Film Group Limited, an exempted company with
limited liability incorporated under the laws of the Cayman Islands (the Guaranteed Party). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its terms, the Merger Agreement), by and among Mountain Tiger International Limited, an exempted company with limited liability incorporated under the laws of
the Cayman Islands (Parent), Mountain Tiger Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a subsidiary of Parent (Merger Sub), and the Guaranteed
Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited
Guarantee. The Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, but only up to the Maximum Amount (as defined below), 34.35% of Parents obligation
(the Guaranteed Obligation) to pay to the Guaranteed Party the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement; provided that the maximum aggregate liability of the
Guarantor hereunder shall not exceed $10,303,720.97 (the Maximum Amount), and the Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of
this Limited Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Partys equityholders, Affiliates and/or Subsidiaries) relating to, arising out of or
in connection with this Limited Guarantee, the Merger Agreement or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent or any other Person or whether Parent or any other Person is joined in any such action or actions; provided that no action or actions
may be brought against the Guarantor under this Limited Guarantee unless such action or actions are also brought simultaneously against the guarantor (each, an Other Guarantor) under each other Limited Guarantee dated as of the
date hereof delivered in connection with the Merger Agreement, and the Guaranteed Party shall not release any of the Other Guarantors from any obligations under such other Limited Guarantees or amend or waive any provision of such other Limited
Guarantees except to the extent the Guarantor under this Limited Guarantee is released or the provisions of this Limited Guarantee are amended or waived on terms and conditions no less favorable than those applicable to the other Limited Guarantees.
Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the other Limited Guarantees dated as of the date
hereof delivered in connection with the Merger Agreement shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent
permitted under applicable Laws, be absolute, irrevocable and unconditional, irrespective of:
(i) the value,
genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor and Parent, pursuant to which the Guarantor has agreed to make a certain equity contribution to
Parent (the Equity Commitment Letter) or any other agreement or instrument referred to herein or therein;
(ii) any release or discharge of any obligation of Parent contained in the Merger Agreement resulting from any change in
the corporate existence, structure or ownership of Parent, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or any of its assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or
performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in
respect thereof;
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time
against Parent or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the
failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required
by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining
repayment of the Guaranteed Obligation; or
(vii) any other act or omission that may in any manner or to any extent
vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligation in accordance with its terms);
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are applicable to Parent under the Merger Agreement
or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the
Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the
Guaranteed Party under the terms of, or with respect to, the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement with respect to the Guaranteed Obligation.
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(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual
of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation
shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under
no obligation to pursue such rights and remedies it may have against Parent or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or
remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve
the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Guaranteed Party.
(d) The Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein (except for notices
to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated
to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantors
obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the
Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. The Guaranteed Party acknowledges and agrees that the sole asset of Parent is cash in a de minimis amount
and that no additional funds are expected to be contributed to Parent unless and until the Closing occurs. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection
herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Partys equityholders, Affiliates and Subsidiaries)
has any right of recovery against, and no personal liability shall attach to, the Guarantor, any Affiliate of the Guarantor, (as applicable) any former, current or future director, officer, employee, agent of the Guarantor or his Affiliates, any
former, current or future assignee of the Guarantor, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of
the foregoing (each such Person, a Related Person), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on
behalf of Parent against the Guarantor or any Related Person (except for any claim to compel Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this
Limited Guarantee. Recourse against the Guarantor under this Limited Guarantee and the Guaranteed Partys third party beneficiary rights under the Equity Commitment Letter (as provided in the Merger Agreement) shall be the sole and exclusive
remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Partys
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equityholders, Affiliates and Subsidiaries against the Guarantor and any Related Person (other than Parent) in
respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate,
limited liability company or limited partnership veil or by a claim by or on behalf of Parent. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and Subsidiaries not
to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be
consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee, (B) claims of the Guaranteed Party against Parent or Merger
Sub under and in accordance with the Merger Agreement and (C) the exercise of the Guaranteed Partys third party beneficiary rights under and in accordance with the Equity Commitment Letter (as provided in the Merger Agreement), and the
Guaranteed Party hereby, on behalf of itself and its Affiliates and Subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter or, in each case, the
transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a
Permitted Claim). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party
any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
4. Subrogation. The
Guarantor will not exercise against Parent any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason
of any payment by him pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation has been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the
earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation, (c) any termination of Guarantors obligation under the Equity Commitment Letter pursuant to Section 4(c) thereof, and
(d) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under circumstances in which Parent and Merger Sub would not be obligated to pay the Parent Termination Fee in
accordance with the Merger Agreement. Notwithstanding the immediately preceding parenthetical, all obligations of the Guarantor hereunder shall expire automatically three months after the termination of the Merger Agreement for any reason without
any further obligations of the Guarantor hereunder, unless a claim for payment of the Guaranteed Obligation is made prior to the end of such three-month period. In the event that the Guaranteed Party or any of its equityholders, Affiliates or
Subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantors
aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and Subsidiaries against the Guarantor or any Related Person) are
illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under
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the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with
respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate
ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, he shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any
Related Person shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or Subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited
Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation, shall be binding upon the Guarantor and his assigns, and shall inure to the benefit of, and
be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for
the benefit of any Related Person (including the provisions of Sections 3, 5, 11, 12 and 15) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related
Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the other Limited Guarantees, the Merger Agreement, the Equity Commitment Letters and any
other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among Parent and/or the Guarantor or any of
their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, and this Limited Guarantee is not intended to and shall not confer upon any Person (including, without limitation, the Guaranteed
Partys equityholders, Affiliates and Subsidiaries) other than the parties hereto and any Related Person any rights or remedies expressly provided herein.
8. Amendments and Waivers. Any provision of this Limited Guarantee 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 the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in
exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature
pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered
(by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications
hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business Day after 5:00 p.m. (addressees
local time) shall be deemed to have been received
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at 9:00 a.m. (addressees local time) on the next Business Day), by reliable international overnight
delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
18/F, Tower
1, U-town Office Building,
No.1 San Feng Bei Li, Chaoyang District
Beijing 100020
Peoples
Republic of China
Facsimile: 86 10 56310828
Email: yudong@bonafilm.cn
with a copy to:
Kirkland & Ellis
26th
Floor, Gloucester Tower, The Landmark
15 Queens Road Central
Hong Kong
Attention: David Zhang
Jesse Sheley
Facsimile: +852-3761-3301
Email:
david.zhang@kirkland.com
jesse.sheley@kirkland.com
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee shall be governed by and construed in accordance with the Laws of the State of New York
without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including
any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty
(30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions
of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue
of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number,
and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third
arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party,
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shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that
the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any Person necessary for the conduct of the
arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or
final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after
the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to
the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced
by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located.
(b) Service of Process. Each party hereby (i) consents to service of process in any action between the parties arising in whole or
in part under or in connection with this Limited Guarantee in any manner permitted by New York law, (ii) agrees that service of process made in accordance with clause (i) or made by registered or certified mail, return receipt requested,
at its address specified pursuant to Section 10, will constitute good and valid service of process in any such action and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such action any
claim that service of process made in accordance with clause (i) or (ii) does not constitute good and valid service of process.
13. Representations and Warranties. Each of the Guarantor and the Guaranteed Party hereby represents and warrants to the other party
that: (a) he/it has all necessary power and authority to execute, deliver and perform this Limited Guarantee; (b) in the case of the Guaranteed Party, the execution, delivery and performance of this Limited Guarantee by it has been duly
and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of such party are necessary therefor; (c) this Limited Guarantee has been duly and validly executed and delivered by him/it and
constitutes a valid and legally binding obligation of him/it, enforceable against him/it in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws
affecting creditors rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by him/it of this Limited Guarantee do not and will not
violate its organizational documents (if applicable) or violate any applicable Law or conflict with any material agreement binding on him/it; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any
Governmental Entity necessary for the due execution, delivery and performance of this Limited Guarantee by him/it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing
with, any Governmental Entity is required in connection with the execution, delivery or performance of this Limited Guarantee; and (f) for so long as this Limited Guarantee shall remain in effect in accordance with its terms, the Guarantor or
his Affiliates shall have the cash on hand and/or capital commitments required to fund the Guaranteed Obligation.
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14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or
obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this
Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or
provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections
3 and 5 hereof. No party hereto shall assert, and each party shall cause its/his respective equityholders, Affiliates and Subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
SIGNATURE PAGE TO LIMITED
GUARANTEE
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
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BONA FILM GROUP LIMITED |
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By: |
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/s/ Daqing Dave Qi |
Name: |
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Daqing Dave Qi |
Title: |
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Chairman of the Independent Committee |
SIGNATURE PAGE TO LIMITED
GUARANTEE
Exhibit 19
Execution Version
LIMITED GUARANTEE
This
Limited Guarantee, dated as of December 15, 2015 (this Limited Guarantee), is made by Oriental Power Holdings Limited, a company with limited liability incorporated in Hong Kong (including its successors and assigns, the
Guarantor), in favor of Bona Film Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the Guaranteed Party). Reference is hereby made to the Agreement and
Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the Merger Agreement), by and among Mountain Tiger International
Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (Parent), Mountain Tiger Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands
that is a subsidiary of Parent (Merger Sub), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee. The Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to
the terms and conditions hereof, but only up to the Maximum Amount (as defined below), 16.45% of Parents obligation (the Guaranteed Obligation) to pay to the Guaranteed Party the Parent Termination Fee if and when required
pursuant to Section 8.2(c) of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed $4,933,757.79 (the Maximum Amount), and the Guaranteed Party hereby
agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Limited Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including,
without limitation, to the Guaranteed Partys equityholders, Affiliates and/or Subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement or the Equity Commitment Letter (as defined below) other
than as expressly set forth herein or in the Equity Commitment Letter.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent or any other Person or whether Parent or any other Person is joined in any such action or actions; provided that no action or actions
may be brought against the Guarantor under this Limited Guarantee unless such action or actions are also brought simultaneously against the guarantor (each, an Other Guarantor) under each other Limited Guarantee dated as of the
date hereof delivered in connection with the Merger Agreement, and the Guaranteed Party shall not release any of the Other Guarantors from any obligations under such other Limited Guarantees or amend or waive any provision of such other Limited
Guarantees except to the extent the Guarantor under this Limited Guarantee is released or the provisions of this Limited Guarantee are amended or waived on terms and conditions no less favorable than those applicable to the other Limited Guarantees.
Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the other Limited Guarantees dated as of the date
hereof delivered in connection with the Merger Agreement shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent
permitted under applicable Laws, be absolute, irrevocable and unconditional, irrespective of:
(i) the value,
genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor and Parent, pursuant to which the Guarantor has agreed to make a certain equity contribution to
Parent (the Equity Commitment Letter) or any other agreement or instrument referred to herein or therein;
(ii) any release or discharge of any obligation of Parent contained in the Merger Agreement resulting from any change in
the corporate existence, structure or ownership of Parent, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or any of its assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or
performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in
respect thereof;
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time
against Parent or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the
failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required
by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining
repayment of the Guaranteed Obligation; or
(vii) any other act or omission that may in any manner or to any extent
vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligation in accordance with its terms);
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are applicable to Parent under the Merger Agreement
or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the
Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the
Guaranteed Party under the terms of, or with respect to, the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement with respect to the Guaranteed Obligation.
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(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual
of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation
shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under
no obligation to pursue such rights and remedies it may have against Parent or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or
remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve
the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Guaranteed Party.
(d) The Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein (except for notices
to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated
to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantors
obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the
Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. The Guaranteed Party acknowledges and agrees that the sole asset of Parent is cash in a de minimis amount
and that no additional funds are expected to be contributed to Parent unless and until the Closing occurs. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection
herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Partys equityholders, Affiliates and Subsidiaries)
has any right of recovery against, and no personal liability shall attach to, the Guarantor, any Affiliate of the Guarantor, any former, current or future director, officer, employee, agent of the Guarantor or its Affiliates, any former, current or
future holder of any Equity Interests of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), any former, current or future assignee of the Guarantor, or any former, current or future
director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of the foregoing (each such Person, a Related Person), through Parent
or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent against the Guarantor or any Related Person (except for any claim to
compel Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee. Recourse against the Guarantor under this Limited Guarantee and the
Guaranteed Partys third party beneficiary rights under the
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Equity Commitment Letter (as provided in the Merger Agreement) shall be the sole and exclusive remedy of
(i) the Guaranteed Party and (ii) all of the Guaranteed Partys equityholders, Affiliates and Subsidiaries against the Guarantor and any Related Person (other than Parent) in respect of any liabilities or obligations arising under, or
in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a
claim by or on behalf of Parent. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and Subsidiaries not to institute, any proceeding or bring any other claim arising
under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person,
except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee, (B) claims of the Guaranteed Party against Parent or Merger Sub under and in accordance with the Merger Agreement and
(C) the exercise of the Guaranteed Partys third party beneficiary rights under and in accordance with the Equity Commitment Letter (as provided in the Merger Agreement), and the Guaranteed Party hereby, on behalf of itself and its
Affiliates and Subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter or, in each case, the transactions contemplated hereby or thereby against the
Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a Permitted Claim). Nothing set forth in this
Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the
Guarantor, except as expressly set forth herein.
4. Subrogation. The Guarantor will not exercise against Parent any rights of
subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of
Section 1 hereof unless and until the Guaranteed Obligation has been paid in full.
5. Termination. This Limited
Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation, (c) any termination of
Guarantors obligation under the Equity Commitment Letter pursuant to Section 4(c) thereof, and (d) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under
circumstances in which Parent and Merger Sub would not be obligated to pay the Parent Termination Fee in accordance with the Merger Agreement. Notwithstanding the immediately preceding parenthetical, all obligations of the Guarantor hereunder shall
expire automatically three months after the termination of the Merger Agreement for any reason without any further obligations of the Guarantor hereunder, unless a claim for payment of the Guaranteed Obligation is made prior to the end of such
three-month period. In the event that the Guaranteed Party or any of its equityholders, Affiliates or Subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions
hereof (including, without limitation, Section 1 hereof limiting the Guarantors aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its
equityholders, Affiliates and Subsidiaries against the Guarantor or
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any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of
liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this
Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if
the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person shall have any liability to the Guaranteed
Party or any of its equityholders, Affiliates or Subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited
Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation, shall be binding upon the Guarantor, its successors and assigns, and shall inure to the
benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited
Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3, 5, 11, 12 and 15) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the
Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the other Limited Guarantees, the Merger Agreement, the Equity Commitment Letters and any
other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among Parent and/or the Guarantor or any of
their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, and this Limited Guarantee is not intended to and shall not confer upon any Person (including, without limitation, the Guaranteed
Partys equityholders, Affiliates and Subsidiaries) other than the parties hereto and any Related Person any rights or remedies expressly provided herein.
8. Amendments and Waivers. Any provision of this Limited Guarantee 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 the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in
exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature
pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered
(by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder
shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business Day after 5:00 p.m. (addressees local time)
shall be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt
requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
29F, Three Pacific Place, No. 1 Queens Road East
Wanchai, Hong Kong
Attention:
Compliance and Transactions Department
Facsimile: 852 2520 1148
Email: legalnotice@tencent.com
with copies to
Tencent Building,
Keji Zhongyi Avenue
Hi-tech Park, Nanshan District
Shenzhen 518057, PRC
Attention:
Mergers and Acquisitions Department
Email: PD_Support@tencent.com
and
Kirkland & Ellis
26th Floor, Gloucester Tower, The Landmark
15 Queens Road Central
Hong Kong
Attention: David Zhang
Jesse Sheley
Facsimile: +852-3761-3301
Email:
david.zhang@kirkland.com
jesse.sheley@kirkland.com
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee shall be governed by and construed in accordance with the Laws of the State of New York
without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including
any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty
(30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the
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dispute be finally settled by arbitration in accordance with the following provisions of this
Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the
arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one
arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator;
provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the
presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers,
and any Person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without
limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the
parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter
agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them,
and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located.
(b) Service of Process. Each party hereby (i) consents to service of process in any action between the parties arising in whole or
in part under or in connection with this Limited Guarantee in any manner permitted by New York law, (ii) agrees that service of process made in accordance with clause (i) or made by registered or certified mail, return receipt requested,
at its address specified pursuant to Section 10, will constitute good and valid service of process in any such action and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such action any
claim that service of process made in accordance with clause (i) or (ii) does not constitute good and valid service of process.
13. Representations and Warranties. Each of the Guarantor and the Guaranteed Party hereby represents and warrants to the other party
that: (a) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee; (b) the execution, delivery and performance of this Limited Guarantee by it has been duly and validly authorized and approved by all
necessary action, and no other proceedings or actions on the part of such party are necessary therefor; (c) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of
it, enforceable against it in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors rights generally and
(ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by it of this Limited Guarantee
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do not and will not violate its organizational documents or violate any applicable Law or conflict with any
material agreement binding it; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Entity necessary for the due execution, delivery and performance of this Limited Guarantee by it have
been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this Limited
Guarantee; and (f) for so long as this Limited Guarantee shall remain in effect in accordance with its terms, the Guarantor or its Affiliates shall have the cash on hand and/or capital commitments required to fund the Guaranteed Obligation.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable
without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this
Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or
provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections
3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective equityholders, Affiliates and Subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
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ORIENTAL POWER HOLDINGS LIMITED |
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By: |
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/s/ Huateng MA |
Name: |
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Huateng MA |
Title: |
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Director |
SIGNATURE PAGE TO LIMITED
GUARANTEE
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
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BONA FILM GROUP LIMITED |
By: |
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/s/ Daqing Dave Qi |
Name: Daqing Dave Qi |
Title: Chairman of the Independent Committee |
SIGNATURE PAGE TO LIMITED
GUARANTEE
Exhibit 20
Execution Version
LIMITED GUARANTEE
This
Limited Guarantee, dated as of December 15, 2015 (this Limited Guarantee), is made by Mr. Zhanshan XIE (including his assigns, the Guarantor), in favor of Bona Film Group Limited, an exempted company
with limited liability incorporated under the laws of the Cayman Islands (the Guaranteed Party). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its terms, the Merger Agreement), by and among Mountain Tiger International Limited, an exempted company with limited liability incorporated under the laws of
the Cayman Islands (Parent), Mountain Tiger Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands that is a subsidiary of Parent (Merger Sub), and the Guaranteed
Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited
Guarantee. The Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, but only up to the Maximum Amount (as defined below), 3.88% of Parents obligation
(the Guaranteed Obligation) to pay to the Guaranteed Party the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement; provided that the maximum aggregate liability of the
Guarantor hereunder shall not exceed $1,164,352.81 (the Maximum Amount), and the Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of
this Limited Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Partys equityholders, Affiliates and/or Subsidiaries) relating to, arising out of or
in connection with this Limited Guarantee, the Merger Agreement or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against Parent or any other Person or whether Parent or any other Person is joined in any such action or actions; provided that no action or actions
may be brought against the Guarantor under this Limited Guarantee unless such action or actions are also brought simultaneously against the guarantor (each, an Other Guarantor) under each other Limited Guarantee dated as of the
date hereof delivered in connection with the Merger Agreement, and the Guaranteed Party shall not release any of the Other Guarantors from any obligations under such other Limited Guarantees or amend or waive any provision of such other Limited
Guarantees except to the extent the Guarantor under this Limited Guarantee is released or the provisions of this Limited Guarantee are amended or waived on terms and conditions no less favorable than those applicable to the other Limited Guarantees.
Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the other Limited Guarantees dated as of the date
hereof delivered in connection with the Merger Agreement shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent
permitted under applicable Laws, be absolute, irrevocable and unconditional, irrespective of:
(i) the value,
genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor and Parent, pursuant to which the Guarantor has agreed to make a certain equity contribution to
Parent (the Equity Commitment Letter) or any other agreement or instrument referred to herein or therein;
(ii) any release or discharge of any obligation of Parent contained in the Merger Agreement resulting from any change in
the corporate existence, structure or ownership of Parent, or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting Parent or any of its assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or
performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in
respect thereof;
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time
against Parent or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the
failure of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against Parent or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required
by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining
repayment of the Guaranteed Obligation; or
(vii) any other act or omission that may in any manner or to any extent
vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment of the Guaranteed Obligation in accordance with its terms);
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are applicable to Parent under the Merger Agreement
or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the
Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the
Guaranteed Party under the terms of, or with respect to, the Merger Agreement that would relieve each of Parent and Merger Sub of its obligations under the Merger Agreement with respect to the Guaranteed Obligation.
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(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual
of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation
shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under
no obligation to pursue such rights and remedies it may have against Parent or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or
remedies or to collect any payments from Parent or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of Parent or any such other Person or any right of offset, shall not relieve
the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Guaranteed Party.
(d) The Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein (except for notices
to be provided to Parent and its counsel pursuant to the terms of the Merger Agreement).
(e) The Guaranteed Party shall not be obligated
to file any claim relating to any Guaranteed Obligation in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantors
obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the
Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. The Guaranteed Party acknowledges and agrees that the sole asset of Parent is cash in a de minimis amount
and that no additional funds are expected to be contributed to Parent unless and until the Closing occurs. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection
herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Partys equityholders, Affiliates and Subsidiaries)
has any right of recovery against, and no personal liability shall attach to, the Guarantor, any Affiliate of the Guarantor, (as applicable) any former, current or future director, officer, employee, agent of the Guarantor or his Affiliates, any
former, current or future assignee of the Guarantor, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of
the foregoing (each such Person, a Related Person), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on
behalf of Parent against the Guarantor or any Related Person (except for any claim to compel Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this
Limited Guarantee. Recourse against the Guarantor under this Limited Guarantee and the Guaranteed Partys third party beneficiary rights under the Equity Commitment Letter (as provided in the Merger Agreement) shall be the sole and exclusive
remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Partys
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equityholders, Affiliates and Subsidiaries against the Guarantor and any Related Person (other than Parent) in respect of any liabilities or obligations arising under, or in connection with, this
Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of
Parent. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and Subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection
with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims
of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee, (B) claims of the Guaranteed Party against Parent or Merger Sub under and in accordance with the Merger Agreement and (C) the exercise of
the Guaranteed Partys third party beneficiary rights under and in accordance with the Equity Commitment Letter (as provided in the Merger Agreement), and the Guaranteed Party hereby, on behalf of itself and its Affiliates and Subsidiaries,
waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person
and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a Permitted Claim). Nothing set forth in this Limited Guarantee shall confer or
give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth
herein.
4. Subrogation. The Guarantor will not exercise against Parent any rights of subrogation or contribution, whether arising
by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by him pursuant to the provisions of Section 1 hereof unless and until the
Guaranteed Obligation has been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have
no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation, (c) any termination of Guarantors obligation under the Equity Commitment Letter
pursuant to Section 4(c) thereof, and (d) the termination of the Merger Agreement in accordance with its terms by mutual consent of Parent and the Guaranteed Party or under circumstances in which Parent and Merger Sub would not be
obligated to pay the Parent Termination Fee in accordance with the Merger Agreement. Notwithstanding the immediately preceding parenthetical, all obligations of the Guarantor hereunder shall expire automatically three months after the termination of
the Merger Agreement for any reason without any further obligations of the Guarantor hereunder, unless a claim for payment of the Guaranteed Obligation is made prior to the end of such three-month period. In the event that the Guaranteed Party or
any of its equityholders, Affiliates or Subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1
hereof limiting the Guarantors aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and Subsidiaries against the
Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under
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the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity
Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously
made any payments under this Limited Guarantee, he shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person shall have any liability to the Guaranteed Party or any of its
equityholders, Affiliates or Subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited
Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation, shall be binding upon the Guarantor and his assigns, and shall inure to the benefit of, and
be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for
the benefit of any Related Person (including the provisions of Sections 3, 5, 11, 12 and 15) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related
Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the other Limited Guarantees, the Merger Agreement, the Equity Commitment Letters and any
other document contemplated hereby and thereby constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among Parent and/or the Guarantor or any of
their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, and this Limited Guarantee is not intended to and shall not confer upon any Person (including, without limitation, the Guaranteed
Partys equityholders, Affiliates and Subsidiaries) other than the parties hereto and any Related Person any rights or remedies expressly provided herein.
8. Amendments and Waivers. Any provision of this Limited Guarantee 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 the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in
exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature
pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered
(by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications
hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business Day after 5:00 p.m. (addressees
local time) shall be deemed to have been received
- 5 -
at 9:00 a.m. (addressees local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
c/o Global Incorporations Limited
Suite 1107, Office Tower C1, Oriental Plaza
No.1 East Chang An Avenue
Beijing 100738, China
Facsimile:
+86 10 8525 5544
Email: xie550713@163.com
with a copy to:
Kirkland & Ellis
26th
Floor, Gloucester Tower, The Landmark
15 Queens Road Central
Hong Kong
Attention: David Zhang
Jesse Sheley
Facsimile: +852-3761-3301
Email:
david.zhang@kirkland.com
jesse.sheley@kirkland.com
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee shall be governed by and construed in accordance with the Laws of the State of New York
without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including
any dispute regarding its breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty
(30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions
of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre (HKIAC) Administered Rules in force when a notice of arbitration is submitted. The seat and venue
of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number,
and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third
arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30
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days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties
agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any Person necessary for the
conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and
any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing.
Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may
relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such
award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located.
(b) Service of Process. Each party hereby (i) consents to service of process in any action between the parties arising in whole or
in part under or in connection with this Limited Guarantee in any manner permitted by New York law, (ii) agrees that service of process made in accordance with clause (i) or made by registered or certified mail, return receipt requested,
at its address specified pursuant to Section 10, will constitute good and valid service of process in any such action and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise) in any such action any
claim that service of process made in accordance with clause (i) or (ii) does not constitute good and valid service of process.
13. Representations and Warranties. Each of the Guarantor and the Guaranteed Party hereby represents and warrants to the other party
that: (a) he/it has all necessary power and authority to execute, deliver and perform this Limited Guarantee; (b) in the case of the Guaranteed Party, the execution, delivery and performance of this Limited Guarantee by it has been duly
and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of such party are necessary therefor; (c) this Limited Guarantee has been duly and validly executed and delivered by him/it and
constitutes a valid and legally binding obligation of him/it, enforceable against him/it in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws
affecting creditors rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law)); (d) the execution, delivery and performance by him/it of this Limited Guarantee do not and will not
violate its organizational documents (if applicable) or violate any applicable Law or conflict with any material agreement binding on him/it; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any
Governmental Entity necessary for the due execution, delivery and performance of this Limited Guarantee by him/it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing
with, any Governmental Entity is required in connection with the execution, delivery or performance of this Limited Guarantee; and (f) for so long as this Limited Guarantee shall remain in effect in accordance with its terms, the Guarantor or
his Affiliates shall have the cash on hand and/or capital commitments required to fund the Guaranteed Obligation.
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14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or
obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this
Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or
provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is
enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections
3 and 5 hereof. No party hereto shall assert, and each party shall cause its/his respective equityholders, Affiliates and Subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
|
Zhanshan XIE |
|
/s/ Zhanshan XIE |
SIGNATURE PAGE TO LIMITED
GUARANTEE
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above.
|
|
|
BONA FILM GROUP LIMITED |
|
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By: |
|
/s/ Daqing Dave Qi |
Name: Daqing Dave Qi |
Title: Chairman of the Independent Committee |
SIGNATURE PAGE TO LIMITED
GUARANTEE
Bona Film Grp. Limited ADS (MM) (NASDAQ:BONA)
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