EX-4.37 INVESTMENT AGREEMENT






Exhibit 4.37



Execution
Copy



INVESTMENT AGREEMENT




     INVESTMENT AGREEMENT, dated as of May 20, 2007, by and between The9 Limited, a Cayman Islands
company limited by shares (the “Company”) and EA International (Studio and Publishing)
Ltd., a Bermuda corporation (the “Investor”). The Company and the Investor may hereinafter
be referred to from time to time as a “party” in their individual capacities and as
“parties” collectively.



RECITALS:




     WHEREAS, the Company and the Investor desire to provide for the issuance, sale and purchase of
the number of ordinary shares of the Company, par value US$0.01 per share (“Ordinary
Shares”) as set forth below in Section 1.1(a), on the terms and conditions set forth in
this Agreement; and



     WHEREAS, the Company and the Investor desire to make certain representations, warranties,
covenants and agreements in connection with the issuance and sales and purchases and related
transactions contemplated by this Agreement.



     NOW THEREFORE, in consideration of the representations, warranties, and covenants herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:



ARTICLE I

ISSUANCE, SALE AND PURCHASE OF ORDINARY SHARES




     1.1 Closing Date Transactions



          (a) Issuance, Sale and Purchase of Ordinary Shares. Upon the terms and subject to the
conditions set forth in this Agreement, and in reliance upon the representations and warranties set
forth herein, the Company agrees to sell and issue to the Investor free and clear of all Liens, and
the Investor agrees to purchase from the Company, on the Closing Date, 4,506,829 Ordinary Shares
(the “Purchased Shares”) at a purchase price per share of US$36.96. Immediately following
the Closing, the Purchased Shares will represent in the aggregate fifteen percent (15%) of the
capital stock of the Company on a Fully-Diluted Basis. The aggregate purchase price of the
Purchased Shares is referred to herein as shall be US$166,572,399.80 (the “Purchase
Price”). On the Closing Date, in consideration for the Purchased Shares, the Investor shall
deliver to the Company the Purchase Price, paid by wire transfer in same-day funds to an account or
accounts designated in writing at least five (5) Business Days prior to the Closing Date by the
Company to the Investor, and, concurrently with such payment, the Company shall acknowledge receipt
from the Investor of the Purchase Price and the Company shall deliver to the Investor one or more
stock certificates representing the Purchased Shares and, concurrently with such delivery, the
Investor shall acknowledge receipt of such stock certificate or certificates.



 









 





          (b) Closing; Closing Date and Place. The parties intend that the closing of the
purchase and sale of the Purchased Shares (together, the “Closing”) will take place at the
offices of Latham & Watkins LLP in Hong Kong on the second Business Day after satisfaction or
waiver of such conditions, or at such other time and place as is agreed by the parties. The date
on which the closing occurs is hereinafter referred to as the “Closing Date.”



ARTICLE II

CONDITIONS




     2.1 Conditions of the Investor. The obligation of the Investor to purchase and pay
for the Purchased Shares as contemplated by this Agreement is subject to the satisfaction, on or
before the Closing Date, of the following conditions, any of which may be waived in writing by the
Investor in its sole discretion.



          (a) Definitive Transaction Documents.




     (i) The License and Distribution Agreement (the “License Agreement”)
dated as of the date hereof between EA Swiss Sàrl, an entity organized under the
laws of Switzerland, with its principal place of business at Place du Molard 8,
1204 Geneva, Switzerland, and 9Dream Limited, in the form set forth in Exhibit
A hereto, shall have been executed and delivered by the parties thereto.




     (ii) The Shareholders Agreement by and among the Company, the Investor and
other parties named therein dated as of the date hereof, in the form set forth in
Exhibit B hereto (the “Shareholders Agreement”), shall have been
executed and delivered by the parties thereto.




     (iii) The Registration Rights Agreement by and between the Company and the
Investor, dated as of the date hereof, in the form set forth in Exhibit C
hereto (the “Registration Rights Agreement”), shall have been executed and
delivered by the parties thereto.




     (iv) On or before the date hereof, the Holder or Holders of a majority in
interest of the Outstanding Registrable Securities (each as defined in the Existing
Registration Rights Agreement) shall have executed and delivered a waiver in
connection with the execution and delivery of the Registration Rights Agreement.




     (v) The relevant Company Parties shall have executed and delivered a successor
agreement to the Old WoW Framework Agreement (the “New WoW Framework
Agreement”) in substantially the form set forth in Exhibit D hereto,
and which shall comply in all respects with applicable PRC Law, including without
limitation, the MII Notice and applicable Tax law.




     (vi) All corporate and other proceedings required to be taken by the Company
in connection with the consummation of the Transactions shall have been completed.



2









 





          (b) Proceedings Not Restrained. No Governmental Authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits, imposes
any damages or penalties that are substantial in relation to the Company and its Subsidiaries taken
as a whole, or otherwise makes illegal the consummation of the Transactions; and no action, suit,
proceeding or investigation shall have been instituted by a Governmental Authority of competent
jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit, impose any damages or
penalties that are substantial in relation to the Company and its Subsidiaries taken as a whole, or
otherwise makes illegal the consummation of the Transactions.



          (c) Representations and Warranties of the Company; No Default. The representations
and warranties of the Company contained in Article III of this Agreement shall have been true and
correct in all material respects (except that any representation or warranty qualified by
materiality or Company Material Adverse Effect shall be true and correct in all respects) on the
date of this Agreement and on and as of the Closing Date; and the Company shall have performed and
complied in all material respects with all, and not be in breach or default in any material respect
under any, agreements, covenants, conditions and obligations contained in this Agreement that are
required to be performed or complied with on or before the Closing Date.



          (d) Consents. All of (i) the Required Regulatory Approvals listed in Schedule
2.1(d) attached hereto as Exhibit E and (ii) the consents, waivers or approvals from
any other Person (including, without limitation, under any contracts to which the Company is a
party) necessary or required to be obtained by the Company, as listed in Section 3.4(b)
(Third Party Consents) of the Disclosure Schedule, for or in connection with the execution and
delivery of the Agreement and the consummation of the Transactions shall have been obtained or made
(except, in the case of (ii), those for which the failure to obtain such consents, waivers or
approvals does not and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect), the Investor shall have received duly executed copies of all
such Required Regulatory Approvals and consents, waivers and approvals, and all waiting periods
related thereto specified under applicable Law, the expiration of which is necessary for such
consummation, shall have expired or been terminated.



          (e) No Material Adverse Effect. From the date of this Agreement to the Closing Date,
no event, fact, circumstance or occurrence shall have occurred that has had or would reasonably be
expected to result in a Company Material Adverse Effect.



          (f) Legal Opinion. The Investor shall have received (i) an opinion of Fangda
Partners, counsel to the Company in the PRC, substantially in the form of Exhibit F hereto
and (ii) an opinion of Maples & Calder, counsel to the Company in the Cayman Islands, substantially
in the form of Exhibit G hereto.



          (g) Certain Documents. The Investor shall have received (i) a certificate of the
Chief Executive Officer of the Company certifying that the conditions contained in Section
2.1(c) have been satisfied in full and (ii) a certified copy of the resolutions of the Company
Board of Directors duly authorizing the creation and issuance of the Purchased Shares and



3









 







setting forth the rights, preferences, designations, qualifications, limitations, restrictions and other
terms thereof.



     2.2 Conditions of the Company. The obligations of the Company to issue and sell the
Purchased Shares to be sold to and purchased by the Investor as contemplated by this Agreement are
subject to the satisfaction, on or before the Closing Date, of each of the following conditions (as
applicable), any of which may be waived in writing by the Company in its sole discretion:



          (a) Definitive Transaction Documents.




     (i) The License Agreement shall have been executed and delivered by the
parties thereto.




     (ii) The Shareholders Agreement shall have been executed and delivered by the
parties thereto.




     (iii) The Registration Rights Agreement shall have been executed and delivered
by the parties thereto.




     (iv) All corporate and other proceedings required to be taken by the Investor
in connection with the consummation of the Transactions shall have been completed.



          (b) Proceedings Not Restrained. No Governmental Authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits, imposes
any damages or penalties that are substantial in relation to the Company and its Subsidiaries taken
as a whole, or otherwise makes illegal the consummation of the Transactions; and no action, suit,
proceeding or investigation shall have been instituted by a Governmental Authority of competent
jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit, impose any damages or
penalties that are substantial in relation to the Company and its Subsidiaries taken as a whole, or
otherwise makes illegal the consummation of the Transactions.



          (c) Representations and Warranties. The representations and warranties of the
Investor contained in Article V of this Agreement shall be true and correct in all material
respects (except that any representation or warranty qualified by materiality or Material Adverse
Effect shall be true and correct in all respects) on the date of this Agreement and on and as of
the Closing Date; and the Investor shall have performed and complied in all material respects with
all, and not be in breach or default in any material respect under any, agreements, covenants,
conditions and obligations contained in this Agreement that are required to be performed or
complied with on or before the Closing Date.



          (d) Consents. All of the Required Regulatory Approvals listed in Schedule
2.2(d) attached hereto as Exhibit E shall have been obtained or made, the Company shall
have received duly executed copies thereof, and all waiting periods related thereto specified under
applicable Law, the expiration of which is necessary for such consummation, shall have expired or
been terminated.




4











 





     2.3 Waiver of Closing Conditions. Waiver of conditions to Closing shall not
constitute a waiver of rights or remedies hereunder with respect to any breach of representations,
warranties, covenants or other obligations or duties of the Company pursuant to this Agreement, and
all rights hereunder with respect to any such breach shall continue, regardless of such waiver, and
the Investor shall be entitled to seek indemnification after Closing in accordance with the terms
of this Agreement with respect to any Losses resulting from or arising out of such breach, absent
express written agreement to the contrary; provided, however, that at or prior to
the Closing, the Investor shall notify the Company in writing of any such waivers of conditions to
Closing by the Investor.



ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     Except as set forth in a correspondingly numbered section of the Disclosure Schedule (it
being understood that the listing or setting forth of an item in one section of the Disclosure
Schedule shall be deemed to be a listing or setting forth in another section or sections of the
Disclosure Schedule if and only to the extent that it is clear on the face of the information set
forth in the Disclosure Schedule that such information is so applicable to such other section or
sections), the Company hereby represents and warrants to the Investor, on the date hereof and as of
the Closing Date as if made on the Closing Date, as follows:



     3.1 Organization and Authority .



          (a) The Company is a company duly incorporated as an exempted company with limited liability,
validly existing and in good standing under the laws of the Cayman Islands. The Company has all
requisite power and authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties. The Company has all necessary corporate power and
authority to enter into this Agreement and the other Transaction Documents to which it is a party
and to perform its obligations hereunder and thereunder. The execution and delivery by the Company
of this Agreement and the other Transaction Documents to which it is a party and the performance of
its obligations hereunder and thereunder have been duly authorized by all requisite action on the
part of the Company. This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium, restructuring or similar laws affecting creditors’ rights and remedies
generally and general equitable principles (regardless of whether enforceability is considered a
proceeding in equity or at law) (“Enforceability Exceptions”).



          (b) The Company has no direct or indirect Subsidiaries and there is no company over which the
Company has direct or indirect Control, or as to which Shanghai Advertisement or any Company Party
owns or controls ten percent (10%) or more of the voting equity securities. Each of the Company
Parties is an Entity duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its formation.
All of the issued shares of capital stock of or other ownership interests in each Company
Party in which the Company has a direct or indirect ownership interest have been duly and validly
authorized and issued and are fully paid and non-assessable and are owned directly or indirectly by
the Company in the



5









 







respective percentages set forth in Section 3.1(b) of the Disclosure
Schedule, free and clear of any Liens. There are no options, warrants, convertible securities or
other rights or Contracts obligating any Company Party to issue or sell, any shares of capital
stock of, or other ownership interests in, any such Company Party. The Charter Documents of each of
the Company Parties comply with the requirements of applicable Law and are in full force and
effect.



          (c) Shanghai IT has all requisite power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its respective properties. Shanghai IT’s
business license is in full force and effect. The Company has Control over Shanghai IT. Shanghai
Advertisement has not incurred any Liabilities except to the extent such Liabilities have not had
and would not reasonably be expected to have a Company Material Adverse Effect, and has never
engaged in any game-related operations. All of the registered capital in Shanghai IT has been
fully contributed and registered in accordance with its Charter Documents and is owned directly by
Messrs. Jun Zhu and Wang Yong, in each case in the amounts set forth in Section 3.1(c) of
the Disclosure Schedule and is free and clear of any Liens. Neither Mr. Jun Zhu nor Mr. Yong Wang
has an application pending in any jurisdiction by him or on his behalf for naturalization or
citizenship thereof.



          (d) Each of the Company Parties is duly authorized, qualified and licensed to conduct business
under the Laws of each jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or license necessary, except in
such jurisdictions where the lack of such qualification or license would not have a Company
Material Adverse Effect. Each of the Company Parties has full corporate power and authority to
carry on the businesses in which it is engaged and has all Regulatory Approvals to own or lease and
operate its properties and conduct its business in all material respects as it is now being
conducted and each such Regulatory Approval is valid and in full force and effect, and none of the
Company Parties has received notice of any investigation or proceedings which, if decided adversely
to the Company or any other Company Party, would reasonably be expected to result in, the
revocation of, or imposition of a materially burdensome restriction on, any such Regulatory
Approval or a Company Material Adverse Effect. None of the current businesses, activities,
agreements or commitments of any Company Party exceeds the business scope of its business licenses.
Each Company Party is in compliance in all material respects with the terms of such Regulatory
Approvals. All Regulatory Approvals required for the Company Parties’ contractual arrangements and
agreements with Shanghai IT and its shareholders (including without limitation Messrs. Jun Zhu and
Wang Yong) and the operations of Shanghai IT (collectively, the “Structuring”) and the
execution, delivery and performance of the documents and agreements in connection therewith (the
“Structuring Documents”, which documents and agreements are listed on Schedule 3.1(d)) have
been obtained, except for those that are not required to have been obtained as of the date of this
Agreement and as of the Closing Date. The Company has not received any notice from any
Governmental Authority
regarding any alleged violation of any Law with respect to the Structuring or any failure to
comply with any material term or requirement of any of the Structuring Documents. To the Knowledge
of the Company, as of the date hereof, there are no pending changes in Law by any Governmental
Authority that would have or would reasonably be expected to have the effect of rendering the
Structuring or the implementation thereof by the Company Parties illegal, void or unenforceable, or
requiring any material changes to the Structuring Documents or the Structuring. Each of the
Structuring Documents has been duly authorized, executed and delivered by each Company



6









 







Party that
is a party thereto and, to the Company’s Knowledge, each other Person that is a party to such
agreement, and each Structuring Document constitutes a valid and legally binding agreement of the
Company and each applicable Company Party, as the case may be, and, to the Company’s Knowledge,
each other Person that is a party to such agreement and each such agreement is enforceable in
accordance with its terms, subject to the effect of any Enforceability Exceptions.



          (e) The Structuring, the Framework Agreements and the implementation thereof by the Company
Parties complies in all material respects with, and is not in violation of, any Law in effect as of
the date hereof and as of the Closing, including applicable PRC Law in effect as of the date hereof
and as of the Closing, to which any of the Company Parties or any of their respective assets is
subject or bound.



     3.2 Capitalization.



          (a) As of the date hereof, the authorized capital stock of the Company consists solely of
100,000,000 Ordinary Shares, of which 24,786,390 shares are issued and outstanding. All such
issued and outstanding shares were duly authorized and validly issued and are fully paid and
non-assessable. There are no voting trusts or other Contracts to which the Company is a party or
by which the Company is bound that directly, indirectly, absolutely or contingently, provide for
the pledge, transfer, purchase, redemption or repurchase, voting or registration under the
Securities Act of any shares of authorized, issued, or outstanding capital stock of the Company of
any class or series.



          (b) Section 3.2(b) of the Disclosure Schedule lists all outstanding or authorized
Rights or other Contracts that could require the Company to issue, sell, or otherwise cause to
become outstanding any shares of its capital stock, or stock appreciation, phantom stock, profit
participation, or similar rights with respect to the Company. As of the date hereof, the Company
had a total of 2,449,614 shares reserved for issuance pursuant to its equity incentive plan
(including pursuant to outstanding stock options, and options available to be granted after the
date hereof pursuant to such plans).



          (c) Section 3.2(c) of the Disclosure Schedule (i) identifies each shareholder of each
of the Company Parties, and the percentage of the outstanding capital stock of each Company Party
owned by each such shareholder, and (ii) lists all outstanding or authorized Rights or other
Contracts that could require each Company Party to issue, sell, or otherwise cause to become
outstanding any shares of its capital stock, or stock appreciation, phantom stock, profit
participation, or similar rights.



     3.3 Due Issuance of the Purchased Shares. All of the Purchased Shares have been duly
authorized and, when issued and delivered to and paid for by the Investor pursuant to this
Agreement, will be validly issued, fully paid and non-assessable and, except as provided in the
Shareholders Agreement, will not be subject to any preemptive or similar rights, restrictions on
voting rights, or Liens.



7









 





     3.4 Non-contravention; Consents.



          (a) The execution, delivery and performance of this Agreement and the other Transaction
Documents by the Company do not, and the consummation by the Company of the Transactions will not
(i) conflict with, breach, result in any violation of or default under (with or without notice or
lapse of time or both), or give rise to a right of termination, cancellation or acceleration of any
obligation or loss of any benefit under, or require consent, approval or waiver from any Person
pursuant to (A) any provision of the Charter Documents of the Company, (B) any Contract or
Regulatory Approval to which the Company is a party or by which the Company or its properties,
operations or assets may be subject or bound or (C) any Law applicable to the Company or any of its
properties or assets, or (ii) result in the creation of any Lien on any of the assets or properties
of the Company, except in the case of (i)(B), (i)(C) and (ii), to the extent it does not or would
not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect.



          (b) No consent, approval or authorization of, or registration or filing with, any Person or
Governmental Authority is required in connection with the execution or delivery by the Company of
this Agreement or the other Transaction Documents or the consummation of the Transactions.



     3.5 Compliance with Laws; Regulatory Approvals .



          (a) The businesses of the Company and the other Company Parties are not being conducted in
violation of any Law applicable to the Company or the other Company Parties except for violations
which do not and would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect.



          (b) The Company Parties and each of their Subsidiaries, and each of their respective officers,
employees, directors or representatives acting on their behalf, have at all times been, in
connection with the consummation of the Transactions, in full compliance with each Law that relates
to bribery, improper competition or other matters including corruption, including Sections 93, 164,
389, 391, 392 and 393 of the PRC Criminal Law, Sections 8 and 10 of the PRC Law Against Improper
Competition or other applicable anti-bribery and anti-grafting Laws of the PRC, and the United
States Foreign Corrupt Practices Act of 1977, as amended.



          (c) The Company Parties and each of their Subsidiaries, and each of their respective officers,
employees, directors or representatives acting on their behalf, have not made, in connection with
the consummation of the Transactions, directly or indirectly, any offer, payment, promise to pay,
or authorized the payment of any money,
including kick-backs, or offer, gift, promise to give or authorized the giving of anything of
value to any non-US official, political party, political party official, candidate for political
office, or employee of a state-owned enterprise, or official of a public international
organization, for the purpose of wrongfully influencing the recipient’s official acts or decisions
(including failures to act and decide) or for securing or obtaining any improper advantage.



8









 





          (d) No Company Party is (i) in violation of its Charter Documents; or (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any Contract to
which such Company Party is a party or by which such Company Party is bound or to which any of the
property or assets of such Company Party is subject, in which the consequence of such violation or
default does or would reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.



          (e) Each of the Company Parties has duly and validly obtained all Regulatory Approvals
necessary for the lawful conduct of their respective businesses, except for failures to hold
such Regulatory Approvals which do not or would not reasonably be expected to have, individually or
in the aggregate, a Company Material Adverse Effect. The Company Parties are in compliance with the
terms of such Regulatory Approvals, except where the failure to so comply does not or would not
reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect.



          (f) No investigation by any Governmental Authority with respect to any Company Party is
pending, or, to the Knowledge of the Company, threatened. No revocation, withdrawal,
suspension, cancellation, termination or modification of any of the Regulatory Approvals is
pending, or, to the Knowledge of the Company, threatened.



     3.6 Financial Statements. The Company has delivered to the Investor true copies of
the Financial Statements, copies of which are attached to Section 3.6 of the Disclosure
Schedule. The Financial Statements (i) complied as to form in all material respects with
applicable accounting requirements with respect thereto as of their respective dates (except for
the absence of notes thereto) and have been prepared in conformity with GAAP applied on a
consistent basis throughout the periods covered thereby (subject to normal year-end adjustments)
and (ii) fairly present in all material respects the consolidated financial position of the Company
and its Subsidiaries as of such dates and the consolidated results of operations and cash flows of
the Company and its Subsidiaries for such periods.



     3.7 SEC Filings; Controls and Procedures.



          (a) The Company has timely filed or delivered, as applicable, all required forms, statements,
schedules, reports and documents (including exhibits thereto and items incorporated by reference)
(the “Company Reports”) with the SEC since December 31, 2004. As of their respective
filing dates, the Company Reports complied
in all material respects with all requirements of the Securities Act, the Exchange Act and the
Sarbanes-Oxley Act, as the case may be, and the rules and regulations of the SEC thereunder
applicable to such Company Reports. None of such Company Reports (as amended or supplemented) when
filed with or delivered to the SEC contained, when filed or delivered, any untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not
misleading. None of the Quarterly Reports (as amended or supplemented), when filed or delivered to
the SEC, contained, when filed or delivered to the SEC, any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading.



9









 





          (b) Except as disclosed in the Company Reports, there are no material weaknesses, or series of
multiple significant deficiencies that are reasonably likely to collectively represent a material
weakness, in the design and operation of the Company’s system of internal controls over financial
reporting. The Company has remediated the material weakness and significant deficiencies disclosed
in the Company’s annual report on Form 20-F/A filed with the SEC on October 12, 2006. As used in
this Agreement, “material weakness” and “significant deficiencies” shall have the meanings given to
such terms by the Public Company Accounting Oversight Board.



          (c) The Company has disclosed to the Company’s outside auditors, the audit committee of the
Company Board of Directors and the Investor (A) all significant deficiencies and material
weaknesses of which it has knowledge in the design or operation of internal controls over financial
reporting (as defined in Rule 13a-15(f) of the Exchange Act) and (B) any fraud, whether or not
material, that involves management or other employees who have a significant role in the Company’s
internal controls over financial reporting.



     3.8 Events Subsequent to Most Recent Fiscal Period. Since December 31, 2006, there
has not occurred any Company Material Adverse Effect or any event, fact, circumstance or occurrence
that would reasonably be expected to result in a Company Material Adverse Effect and the Company
Parties, taken as whole, have conducted their business and affairs in the ordinary course of
business.



     3.9 Undisclosed Liabilities. None of the Company Parties have any material
liabilities of any nature, whether accrued, absolute, fixed, contingent, or otherwise, whether due
or to become due which would be required to be recorded or reflected on a balance sheet or in the
notes thereto under GAAP, other than (i) Liabilities that are reflected, reserved for or disclosed
in the Financial Statements, or (ii) Liabilities incurred in the ordinary course of business since
December 31, 2006 that have not had and would not reasonably be expected to have, individually or
in the aggregate, a Company Material Adverse Effect.



     3.10 Due Diligence . The Company has provided the Investor with copies of (i) the
Financial Statements, (ii) the Structuring Documents, (iii) each of the documents
listed in the Disclosure Schedules, (iv) any Contracts between any Company Party and Vivendi
Universal Games Inc. or any of its Affiliates and (v) all other documents and information listed by
the Company as being provided to the Investor pursuant to the Investor’s due diligence requests
(subject to, in the case of each of (iii), (iv) and (v), any mutually agreed redactions). All such
copies are true and complete copies in all material respects and include all amendments,
supplements and modifications thereto or waivers currently in effect thereunder.



     3.11 Tax Matters.



          (a) Each of the Company Parties has filed on a timely basis all material Tax Returns that it
was required to file under applicable Laws on or prior to the date hereof. All such Tax Returns
were, when filed, correct and complete in all material respects and were prepared in substantial
compliance with all applicable Laws. All material Taxes owed by the Company Parties (whether or
not shown on any Tax Return) have been paid when due taking into account any extensions, or if not
yet due, such Taxes have been properly accrued in accordance with



10









 







GAAP. None of the Company
Parties is currently the beneficiary of any extension of time for the filing of any Tax Return.
Since December 31, 2005, none of the Company Parties has incurred any liability for Taxes other
than in the ordinary course of its business. There is no extension of any statute of limitations
on the assessment of any Taxes granted by any of the Company Parties that is currently in effect.
No claim has ever been made in writing addressed to the relevant Company Party by a Governmental
Authority in a jurisdiction where any of the Company Parties do not file Tax Returns that it is or
may be subject to taxation by that jurisdiction. There are no Liens on any of the assets or
properties of the Company Parties that arose in connection with any failure (or alleged failure) to
pay any Tax. The Company has made available to Investor correct and complete copies of all
material Tax Returns, examination reports, and statements of deficiencies assessed against or
agreed to by the Company Parties.



          (b) To the Knowledge of the Company, there is no pending dispute or claim concerning any Tax
Liability of any of the Company Parties either claimed or raised by any Governmental Authority or
with any agent of any Governmental Authority. No Company Party has received from any foreign,
federal, state, or local taxing authority (including jurisdictions where any Company Party has not
filed Tax Returns) any written (i) notice indicating an intent to open an audit or other review, or
(ii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted, or
assessed by any taxing authority against any Company Party.



          (c) No Company Party is formed under the laws of the United States or any state thereof.



          (d) No Company Party is a party to or bound by any Tax sharing, Tax indemnity, or Tax
allocation agreement.



          (e) The Company has in its possession official foreign government receipts for any Taxes paid
by it to any foreign Governmental Authority.



          (f) The Company is in compliance with the requirements for any applicable Tax holidays or
incentives and none of the Tax holidays or incentives will be jeopardized by the transaction
contemplated in this Agreement.



          (g) The Company is not, and will not on the Closing Date be, a “Controlled Foreign
Corporation” within the meaning of Section 957 of the Code. The Company does not, and will not
immediately prior to the Closing, have any “United States shareholders” within the meaning of
Section 951(b) of the Code.



          (h) The Company does not expect to be treated as a “Passive Foreign Investment Company” within
the meaning of Section 1297 of the Code for its current taxable year. The Company does not intend
to conduct its business in a manner that would reasonably be expected to result in the Company
being treated as a Passive Foreign Investment Company within the meaning of Section 1297 of the
Code.



          (i) The prices for any property (or use of any property) or services provided by or to the
Company or any of its Subsidiaries are and have been in accordance with applicable PRC Law in all
material respects.



11









 





          (j) None of the Company Parties has any material Liabilities for unpaid Taxes arising from the
Framework Agreements and the implementation thereof by the Company Parties.



     3.12 Intellectual Property. (a) Each of the Company Parties owns, or is licensed to
use (in each case, free and clear of any Liens), all Intellectual Property used in or necessary for
the conduct of its business as currently conducted by it, (b) the use of any Intellectual Property
by the Company Parties, and the conduct by each of the Company Parties of its business as currently
conducted by it, does not infringe on or otherwise violate or conflict with the rights of any
Person and is in accordance with any applicable license pursuant to which the Company Parties
acquired the right to use such material Intellectual Property, (c) to the Knowledge of the Company,
no Person is challenging or infringing upon or otherwise violating any right of any Company Party
with respect to any Intellectual Property owned or licensed by the Company Parties and (d) no
Intellectual Property owned or licensed by the Company Parties is being used or enforced in a
manner that would result in the abandonment, cancellation or unenforceability of such Intellectual
Property, except in the case of any of (a), (b), (c) or (d), other than as does not have and would
not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect. Neither the Company nor any other Company Party has received written notice with respect
to, or has Knowledge of, (i) any pending or threatened action, suit, proceeding or claim by others
with respect to any Intellectual Property owned or licensed by the Company Parties, including any
claim challenging the rights of any Company Party in or to any such Intellectual Property or (ii)
any pending or threatened action, suit, proceeding or claim by others that any of the Company
Parties infringes or otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others.



     3.13 Related Party Transactions. All Contracts, and any other material relationships,
between any Company Party, on the one hand, and any Related Person of any Company Party, on the
other hand, and all obligations owed by any Company Party to any Related Person of any Company
Party (other than obligations owed by one Company Party to another), are disclosed in the Company
Reports or in Section 3.13 of the Disclosure Schedule.



     3.14 Litigation. There is no pending or, to the Knowledge of the Company, threatened
action, suit, proceeding, claim or investigation against any Company Party or any of their
respective assets or properties before any Governmental Authority or arbitrator which does or would
reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect. Neither the Company nor, to the Company’s Knowledge, any other Company Party, has received
any written notice that such an action, suit, proceeding, claim or investigation will be brought
against any Company Party.



     3.15 Choice of Law. The Company has the power to submit, and pursuant to Section
9.6 of this Agreement, has legally, validly, effectively and unconditionally submitted, to the
non-exclusive personal jurisdiction of any state or federal court in the City of New York, County
of New York and has validly and irrevocably waived any objection to the laying of venue of any
suit, action or proceeding brought in any such court.




12











 





ARTICLE IV

[INTENTIONALLY OMITTED]




ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR




     The Investor hereby represents and warrants to the Company as of the date hereof and as of the
Closing Date as if made on the Closing Date as follows:



     5.1 Organization and Authority; Financial Position.



          (a) Each of EARTH and its Subsidiaries (including the Investor) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its formation and has all
requisite power and authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties. Each of EARTH and the Investor has all necessary corporate
power and authority to enter into this Agreement and the other Transaction Documents to which it is
a party and to perform its obligations hereunder and thereunder. The execution and delivery by
EARTH and the Investor of this Agreement and the other Transaction Documents to which it is a party
and the performance of their respective obligations hereunder and thereunder have been duly
authorized by all requisite action on the part of EARTH and the Investor, as the case may be. This
Agreement has been duly executed and delivered by each of EARTH and the Investor and constitutes a
legal, valid and binding agreement of each of EARTH and the Investor enforceable against each of
them in accordance with its terms, subject to the effect of any Enforceability Exceptions.



          (b) All of the issued shares of capital stock in the Investor are owned directly or indirectly
by EARTH.



          (c) The Investor has total assets, determined in accordance with GAAP, in excess of Five
Hundred Million Dollars ($500,000,000).



     5.2 Non-contravention; Consents.



          (a) The execution, delivery and performance of this Agreement and the other Transaction
Documents (to which either or both is a party) by EARTH and the Investor do not, and the
consummation by EARTH and the Investor of the Transactions will not (i) conflict with, breach,
result in any violation of or default under (without or without notice or lapse of time or both),
or give rise to a right of termination, cancellation or acceleration of any obligation or loss of
any benefit under, or require consent, approval or waiver from any Person pursuant to (A) any
provision of the Charter Documents of the Investor, (B) any Contract or Regulatory Approval to
which EARTH or the Investor is a party or by which EARTH or the Investor or their respective
properties, operations or assets may be subject or bound or (C) any Law applicable to EARTH or the
Investor or any of their respective properties or assets, or (ii) result in the creation of any
Lien on any of the assets or properties of EARTH or the Investor, except in the case of (i)(B),
(i)(C) and (ii), to the extent it does not or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to EARTH or the
Investor.



13









 





          (b) No consent, approval or authorization of, or registration or filing with, any Person or
Governmental Authority is required in connection with the execution or delivery by EARTH or the
Investor of this Agreement or the other Transaction Documents or the consummation of the
Transactions.



     5.3 Status and Investment Intent.



          (a) Experience. The Investor has sufficient knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of its investment in the
Purchased Shares. The Investor is capable of bearing the economic risks of such investment,
including a complete loss of its investment.



          (b) Accredited Investor. At the time the Investor was offered the Purchased Shares
that it is purchasing pursuant to this Agreement, it was, and it is, an “accredited investor” as
defined in Rule 501(a)(1), (a)(2), (a)(3) (a)(7) or (a)(8) of the Securities Act.



          (c) Purchase Entirely for Own Account. The Investor is acquiring the Purchased Shares
that it is purchasing pursuant to this Agreement for investment for its own account for investment
purposes only and not with the view to, or with any intention of, resale, distribution or other
disposition thereof. Neither EARTH nor the Investor has any direct or indirect arrangement, or
understanding with any other Persons to distribute, or regarding the distribution of the Purchased
Shares in violation of the Securities Act or any other applicable state securities law.



          (d) Restricted Securities. The Investor acknowledges that the Purchased Shares are
“restricted securities” that have not been registered under the Securities Act or any applicable
state securities law. The Investor further acknowledges that, absent an effective registration
under the Securities Act, the Purchased Shares may only be offered, sold or otherwise transferred
(i) to the Company, (ii) outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act or (iii) pursuant to an exemption from registration under the Securities
Act.



          (e) Legends. The Investor acknowledges that each certificate representing the
Purchased Shares shall be stamped or otherwise imprinted with a legend in substantially the
following form:



“The transfer of the securities represented by this certificate may only be done in
compliance with and pursuant to the terms of the Shareholders Agreement, dated May
20, 2007, among the Investor, the Company and the other parties thereto. The
securities represented hereby have not been registered under the United States
Securities Act of 1933, as amended (the “Securities Act”). The securities
represented by this certificate may, unless effectively registered, be offered,
sold or otherwise transferred only (a) to the Company, (b) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act, or (c) pursuant to an exemption from
registration under the Securities Act.”



          (f) Access to Data. EARTH and the Investor have received and reviewed certain
information in respect of the Company and have had an opportunity to discuss the



14









 







Company’s business, management and financial affairs with its management and to review the Company’s
facilities. EARTH and the Investor understand and acknowledge that such discussions, as well as
any written information issued by the Company (i) were intended to describe the aspects of the
Company’s business and prospects which the Company believes to be material, but were not
necessarily exhaustive descriptions, and (ii) may have contained forward-looking statements
involving known and unknown risks and uncertainties which may cause the Company’s actual results in
future periods or plans for future periods to differ materially from what was anticipated and that
no representations or warranties were or are being made with respect to any such forward-looking
statements or the probability of achieving any of the results projected in any of such
forward-looking statements. The foregoing, however, does not limit or modify the representations
and warranties of the Company in Article III of this Agreement or the right of the Investor to rely
thereon.



ARTICLE VI

COVENANTS




     6.1 Conduct of Business. From the date hereof until the Closing Date, without the
prior written consent of the Investor (which consent shall not be unreasonably withheld), except as
expressly permitted or required by this Agreement, the Company shall not:



     (A) propose, declare, set aside, or pay any dividends or make any other
distributions or make any changes in the dividend policy of the Company with
respect to its capital stock (whether in cash, securities, property or otherwise),
or redeem, purchase or otherwise acquire any of the capital stock of the Company to
the extent that such redemption, purchase or acquisition would cause the Investor
and its Affiliates, as of the Closing, to beneficially own 20% or more of the
outstanding capital stock of the Company);



     (B) take any action that would result in the issuance of any equity securities
or Rights of the Company to any Person, except for (i) the issuance of Ordinary
Shares pursuant to agreements or instruments outstanding as of the date hereof that
require the issuance of such Ordinary Shares, as set forth in Section
3.2(b) of the Disclosure Schedule, and the grant of options pursuant to the
Company’s 2004 Stock Option Plan as in effect on the date of this Agreement and
(ii) the acquisition by the Company of any unaffiliated Entity by means of an
issuance of capital stock of the Company;



     (C) effect, or set any record date for, any stock split, share dividend; any
combination, subdivision or reclassification of its capital stock, any
recapitalization, or any similar transaction with respect to the Ordinary Shares;



     (D) take any action that would result in the loss (or reduction) of any Tax
holiday or incentive; or



     (E) make any decision or take any action similar to those listed above in this
Section 6.1.



15









 





     6.2 Commercially Reasonable Efforts. Each of the parties hereto agrees to use its
commercially reasonable efforts to take or cause to be taken all actions (including without
limitation, with respect to the Company, any necessary amendments to the Company’s Charter
Documents and the approval thereof) and to do or cause to be done all things necessary, proper or
advisable under applicable Laws to consummate the Investment and the other Transactions
contemplated by this Agreement in accordance with the terms of the Agreement. Without limiting the
foregoing, each of the Investor and the Company will use its commercially reasonable efforts to
promptly make all filings with respect to, and to obtain, all Required Regulatory Approvals and
other Regulatory Approvals necessary or advisable, in order to permit the consummation of the
Investment.



     6.3 Access; Delivery of Financial Statements and Company Reports.



          (a) Subject to the non-disclosure agreement dated April 6, 2007 between EARTH and the Company
(the “NDA”) and applicable Law, prior to the Closing, the Company Parties shall grant to
the Investor and its authorized Representatives reasonable access during normal business hours to
(i) the management of the Company Parties in connection with the Investor’s due diligence
investigation and otherwise in connection with the Transactions, and (ii) the Company Parties and
to the properties, records, financial and operating data and personnel of the Company Parties (and
shall cause the Company’s accountants to be available, on reasonable advance notice, to answer
questions) in connection with the Investor’s due diligence investigation and otherwise in
connection with the Transactions; provided, the Investor shall exercise reasonable care to
prevent such access from being unduly disruptive to the business operations of the Company Parties.
During the aforementioned period, the Company shall furnish promptly to the Investor (i) a copy of
any Company Report filed with the SEC during such period and (ii) all other information concerning
its business, properties and personnel as the Investor may reasonably request in connection with
the Transactions.



     Prior to the Closing, the Company shall prepare and deliver to the Investor, as soon as
reasonably practicable, (i) the Financial Statements with respect to each period ended after the
date hereof, and (ii) copies of any Company Report to or with the SEC or any documents to the
Company’s shareholders on or after the date hereof.



     6.4 Confidentiality; Publicity.



          (a) Subject to Section 6.4(c), the Company agrees to treat confidentially and not to
disclose any Confidential Information to any third party (other than its Representatives who need
to know such information to assist such disclosing party and who agree to keep it confidential)
except with the prior written consent of the Investor. If the Company or any of its Representatives
conclude (based on written advice of outside legal counsel) that it or its Representative is
legally compelled or required to disclose Confidential Information, it or its Representatives may
disclose that portion (but only that portion) of the Confidential Information which such counsel
advises it in writing is legally required to be disclosed, provided that it use its reasonable best
efforts to preserve the confidentiality of the Confidential Information, including, without
limitation, by cooperating with the Investor (at the Investor’s expense) to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be accorded the
Confidential Information by such tribunal; and provided further that the



16









 







Company shall promptly notify the Investor of (i) the determination by the Company or its Representative to make such
disclosure and (ii) the nature, scope and contents of such disclosure.



          (b) The parties hereto acknowledge that EARTH and the Company have previously executed the NDA
which shall continue in full force and effect in accordance with its terms. The Investor hereby
agrees to be bound by the terms and conditions of the NDA to the same extent as though the Investor
was a party thereto.



          (c) Each of the Company and the Investor will consult with one another before issuing any
press release or otherwise making any public statements with respect to the Transactions and shall
not, without the prior written consent of the other party, which consent shall not be unreasonably
withheld, issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable Law or by obligations pursuant to any listing
agreement with a securities exchange, as determined by the Company or the Investor, as the case may
be; provided, however, that the Company shall not be required to obtain prior written consent of
the Investor, but shall be required to consult with the Investor prior to the filing thereof, with
respect to any forms, statements, schedules, reports and documents required to be filed with the
SEC with respect to the Transactions.



     6.5 Exclusivity. (a) The Company shall immediately cease and terminate, and cause its
Representatives to cease and terminate, any existing solicitation, initiation, encouragement,
activity, discussion or negotiation with any Persons conducted heretofore by any Company Party with
respect to any proposed, potential or contemplated Company Party Transaction.



          (b) From the date hereof until the earlier of the Closing Date and the termination of this
Agreement (the “Exclusivity Period”), the Company shall not permit any of its Subsidiaries
or any of its or their officers, directors or employees or any investment banker, attorney,
accountant or other advisor or representative of any Company Party to, directly or indirectly, (A)
solicit or initiate, or encourage the submission of, any offer with respect to, (B) participate in any discussions or negotiations
regarding, (C) furnish to any Person any information, other than information made publicly
available by the Company, with respect to, or take any other action to facilitate any inquiries or
the making of any offer or proposal with respect to, or (D) authorize, engage in, or enter into any
agreement or understanding with respect to, any Company Party Transaction. Notwithstanding the
foregoing, the Company Board of Directors shall be permitted, prior to the Closing, to consider and
participate in discussions and negotiations with respect to a bona fide Company Party Transaction
received by the Company that the Company Board of Directors concludes in good faith would, if
completed, be more favorable from a financial point of view to its shareholders than the Investment
and the transactions contemplated by this Agreement, if the Company Board of Directors reasonably
determines in good faith that failure to do so would be inconsistent with its fiduciary duties.
The Company will promptly notify the Investor of any proposal regarding a Company Party Transaction
(which notice shall identify the Person making the proposal and set forth the material terms
thereof) that the Company, any of its Subsidiaries or Affiliates or any of its or their
Representatives may receive during the Exclusivity Period.



     6.6 Notifications. At all times prior to the Closing Date, the Company shall promptly
notify the Investor in writing of any fact, change, condition, circumstance or occurrence or



17









 







nonoccurrence of any event, which will, or would reasonably be expected to, result in (a)
non-satisfaction of any condition to the Closing or (b) a Company Material Adverse Effect,
provided, however, that the delivery of any notice pursuant to this Section
6.6 shall not limit or otherwise affect the remedies available hereunder to any party receiving
such notice.



ARTICLE VII

INDEMNIFICATION




     7.1 Survival of Representations, Warranties and Covenants.



          (a) All of the representations and warranties contained in this Agreement shall survive the
Closing hereunder and continue in full force and effect until the applicable Survival Date;
provided, further, that nothing herein shall affect the rights of any Indemnified
Parties (as defined below in Section 7.2(a)) under this Article VII or otherwise to
seek recovery for Losses arising out of any fraud by any Company Party until the expiration of the
applicable statute of limitations. The covenants contained in Section 6.4
(Confidentiality; Publicity) shall survive the Closing and remain in full force and effect, subject
to any limitations expressly set forth in such covenants.



          (b) No knowledge of the Investor relating to any Company Party (actual, constructive or
imputed) shall prevent or limit a claim made by the Investor for breach of the Company’s
representations and warranties (subject to the express qualifications of any such representation or
warranty set forth in the Disclosure Schedule); and unless set forth in the Disclosure Schedule,
which expressly modifies the relevant representation or warranty, the Company may not invoke the
Investor’s knowledge (actual, constructive or imputed) of a fact or circumstance that might make a
statement untrue, inaccurate, incomplete or misleading as a defense to a claim for breach of the
Company’s representations and warranties.



     7.2 Indemnification.



          (a) The Company agrees to indemnify and hold harmless the Investor, each of its Affiliates,
and each of the Investor’s and such Affiliates’ officers, directors, employees, partners, members,
stockholders and successors and assigns of such Persons (collectively, the “Indemnified
Parties”) from and against any and all Losses of any kind or nature resulting from or arising
out of (i) any failure of any representation or warranty made by the Company in Article III of this
Agreement to be true and correct as of the date of this Agreement, and as of the Closing Date as if
such representation or warranty were made on and as of the Closing Date (or, in the case of any
such representation or warranty made as of a date specified therein, any inaccuracy therein as of
such date), provided that (A) notice of such failure has been delivered to the Company before the
applicable Survival Date and (B) the Closing shall have occurred pursuant to Section
1.1(b), and (ii) any breach or failure to perform any covenant, agreement or obligation of any
Company Party contained herein.



          (b) For purposes of Section 7.2(a), all standards or qualifiers in any representation
or warranty as to “material”, “in all material respects”, “Company Material Adverse Effect”,
“Material Adverse Effect” and “Knowledge” shall be disregarded in



18









 







determining the amount of any Losses resulting from such breach or failure to be true and correct.



          (c) The Company and the Investor expressly recognize and agree that all amounts paid pursuant
to this Article VII by the Company to the Indemnified Parties shall be treated for Tax purposes as
an adjustment to the Purchase Price to the extent permitted under applicable Law.



          (d) In calculating the amount of the Losses to any Indemnified Party under Section
7.2(a), the amount of Losses will be net of any amounts actually recovered by the Indemnified
Party from any third party (including insurance proceeds) as a result of the facts or circumstances
giving rise to the Losses.



          (e) Except in the case of fraud, and subject to Section 9.9 hereof, the
indemnification provisions of this Article VII shall be the sole and exclusive remedy with respect
to the matters listed in Section 7.2(a) and no party shall pursue or seek to pursue any
other remedy.



          (f) Notwithstanding anything to the contrary in this Agreement, except in the case of fraud,
(i) the Company shall not be obligated to indemnify an Indemnified Party under Section
7.2(a), except if and to the extent that the aggregate Losses incurred by the Indemnified Party
as a result of all Losses that would otherwise be subject to indemnification under Section
7.2(a) exceeds the sum of US$2 million (the “Basket Amount”), and then such Indemnified
Party shall be entitled to indemnification only for the portion of its Losses that exceeds the Basket Amount, (ii) the Company shall not
be responsible for indemnifying any Indemnified Party for any individual claims where the Losses
relating thereto are less than US$100,000 and such items shall not be aggregated for purposes of
clause (i) above, (iii) the aggregate Liability of the Company to the Indemnified Parties for
indemnification under this Article VII shall be limited to the Purchase Price, and (iv) the
aggregate Liability of the Company to the Indemnified Parties for indemnification under this
Article VII for a breach of Section 3.11, (y) shall be limited to the Purchase Price with respect
to claims for which an Indemnified Party shall have notified the Company pursuant to Section
7.2(a) during the period from the Closing Date until the first anniversary thereof and (z)
shall be limited to $10,000,000 for claims for which an Indemnified Party shall have notified the
Company pursuant to Section 7.2(a) following the first anniversary of the Closing Date and
on or before the applicable Survival Date.



     7.3 Certain Notice Procedures. 



          (a) In the event that, following delivery of a notice by the Investor pursuant to Section
7.2(a) of a failure of the representation set forth in Section 3.1(e) to be true and
correct (the “Section 7.2(a) Notice”), the Indemnified Party anticipates that it may sell
or otherwise transfer for a purchase price of less than the Original Price per share (other than in
accordance with Rule 144 of the Securities Act, or to an Affiliate), any Purchased Shares
(including Purchased Shares represented by ADSs) beneficially owned, directly or indirectly, by the
Indemnified Party and its Related Transferees (the “Subject Stock”), then the Indemnified
Party shall, prior to consummating such transfer, provide the Company with not less than thirty
(30)



19









 







days notice (which may be provided during the Cure Period) that it may sell or otherwise transfer such Subject Stock (a “Transfer Notice”) specifying the number of such Subject
Stock that the Indemnified Party may sell or otherwise transfer or dispose.



          (b) In the event that the Indemnified Party sells any Subject Stock (i) during any applicable
Cure Period, or (ii) for less than the Original Price in a transaction that is subject to, and does
not comply with, this Section 7.3, such Indemnified Party shall not be entitled to be
indemnified for any Loss incurred as a result of such sale, and the loss of such right to
indemnification shall be the sole remedy of the Company with respect to such failure to comply with
this Section 7.3. The Indemnified Party shall have no liability to the Company or any
other party in the event that it ultimately does not sell any Subject Stock with respect to which
it has delivered a Transfer Notice. Any information set forth in a Transfer Notice, and the fact
that a Transfer Notice has been delivered, shall constitute Confidential Information for purposes
of Section 6.4(a).



     7.4 Third Party Claims.



          (a) If any third party shall notify any Indemnified Party in writing with respect to any
matter involving a claim by such third party (a “Third Party Claim”) which such Indemnified
Party believes would give rise to a claim for indemnification against the Company under this
Article VII, then the Indemnified Party shall promptly (i) notify the Company thereof in
writing within thirty (30) days of receipt of notice of such claim and (ii) transmit to the Company a written notice (“Claim Notice”) describing in
reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to
such claim (if any), and the basis of the Indemnified Party’s request for indemnification under
this Agreement; provided, however, that no delay on the part of the Indemnified
Party in so notifying the Company shall relieve the Company of any obligation under Section
7.2 with respect thereto unless (and then solely to the extent) the Company is prejudiced
thereby.



          (b) Subject to Section 7.4(d), upon receipt of a Claim Notice with respect to a Third
Party Claim, the Company shall have the right to assume the defense of any Third Party Claim by
notifying the Indemnified Party in writing that the Company elects to assume the defense of such
Third Party Claim, and upon delivery of such notice by the Company, the Company shall have the
right to defend such Third Party Claim with counsel, selected by it, who is reasonably satisfactory
to the Indemnified Party, by all appropriate proceedings, which proceedings shall be prosecuted
actively and diligently by the Company to a final conclusion or settled. Notwithstanding the
foregoing, the Company shall not be entitled to consent to the entry of a Judgment or enter into
any compromise or settlement with respect to such Third Party Claim without the prior written
consent of the Indemnified Party (which shall not be unreasonably withheld).



          (c) If requested by the Company, the Indemnified Party agrees, at the sole cost and expense of
the Company, to cooperate with the Company and its counsel in contesting any Third Party Claim
which the Company elects to contest, including the making of any related counterclaim against the
Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified
Party shall have the right to receive copies of all pleadings, notices and communications with
respect to any Third Party Claim, other than any privileged



20









 







communications between the Company and its counsel, and shall be entitled, at its sole cost and expense, to retain separate co-counsel and
participate in, but not control, any defense or settlement of any Third Party Claim assumed by the
Company pursuant to Section 7.4(b); provided, however, if, based on written advice
of counsel, the Indemnified Party concludes that there is a reasonable likelihood of a conflict of
interest between the Company and the Indemnified Party with respect to such Third Party Claim, the
Company shall bear the reasonable costs and expenses of one counsel to the Indemnified Party in
connection with such defense.



          (d) If (i) the Company fails to notify the Indemnified Party within the thirty (30) days after
receipt of any Claim Notice that the Company elects to assume the defense of any Third Party Claim
pursuant to Section 7.4(b), (ii) the Company elects to assume the defense of any Third
Party Claim pursuant to Section 7.4(b) but fails to diligently prosecute or settle such
Third Party Claim, (iii) the Company and the Indemnified Party are parties to the same proceeding
(or, assuming the veracity of the facts alleged by the party bringing the Third Party Claim, the
Company and the Indemnified Party may become parties to the same proceeding) and the Indemnified
Party determines in good faith that a conflict of interest exists between the Company and the
Indemnified Party, (iv) the Indemnified Party determines in good faith that there is a reasonable
possibility that it will be prejudiced in any material respect beyond the ambit of such Third Party
Claim by the Company’s control of the defense and proceedings with respect to any Third Party Claim, or (v) such Third Party Claim is a claim by a Tax
Governmental Authority, then (A) the Indemnified Party shall have the right to assume full control
of the defense and proceedings with respect to such Third Party Claim, and the Indemnified Party
may compromise or settle such Third Party Claim without consulting with, or obtaining consent from,
the Company in connection therewith (it being understood and agreed that the Company shall not be
bound by any such compromise or settlement entered into without its consent) and (B) the Company
shall reimburse the Indemnified Party promptly and periodically for the costs of defending against
the Third Party Claim (including fees and disbursements of no more than one counsel per
jurisdiction (such counsel reasonably acceptable to the Company) reasonably incurred in connection
with such Third Party Claim). The Indemnified Party shall have full control of such defense and
proceedings, although the Company shall be entitled to participate in any defense or settlement
controlled by the Indemnified Party pursuant to this Section 7.4(d) at its sole expense.
Any compromise or settlement of a Third Party Claim effected by the Indemnified Party without the
Company’s consent shall not be dispositive of the amount of any Losses with respect to such Third
Party Claim.



          (e) In the event any Indemnified Party should have a claim against the Company hereunder which
does not involve a Third Party Claim, the Indemnified Party shall promptly transmit to the Company
a written notice (the “Indemnity Notice”) describing in reasonable detail the nature of the
claim, the Indemnified Party’s best estimate of the amount of Losses attributable to such claim and
the basis of the Indemnified Party’s request for indemnification under this Agreement; provided
that no delay on the part of the Indemnified Party in delivering the Indemnity Notice pursuant to
this Section 7.4(e) shall relieve the Company of any obligation hereunder unless (and then
solely to the extent) the Company is prejudiced thereby. If the Company does not notify the
Indemnified Party within thirty (30) days from its receipt of the Indemnity Notice that the Company
disputes such claim (the “Dispute Notice”), the Company shall be deemed to have accepted
and agreed with such claim. If the



21









 







Company has disputed such claim, the Company and the Indemnified Party shall proceed in good faith to negotiate a resolution to such dispute. If the Company and
the Indemnified Party cannot resolve such dispute in thirty (30) days after delivery of the Dispute
Notice, such dispute shall be resolved pursuant to Section 9.6.



ARTICLE VIII

TERMINATION




     8.1 Termination of Agreement. Subject to Section 8.2 hereof, this Agreement
may be terminated by notice in writing at any time prior to the Closing by:



          (a) The Investor or the Company, if the Closing has not occurred on or before August 20, 2007
(the “Termination Date”); provided, however, that the right to terminate
this Agreement under this Section 8.1(a) shall not be available to any party whose willful
breach of this Agreement has resulted in the failure of the Closing to occur on or before the
Termination Date;



          (b) The Investor or the Company, if any Governmental Authority of competent jurisdiction shall
have issued any Judgment or taken any other action restraining, enjoining or otherwise prohibiting
the consummation of the Transactions and such Judgment or other action becomes final and
non-appealable; provided, that the party seeking to terminate this Agreement pursuant to
this clause (b) shall have used its commercially reasonable efforts to have such Judgment lifted,
vacated or denied;



          (c) The Investor and the Company, if the Investor and the Company so mutually agree in
writing; and



          (d) The Investor or the Company, if there has been a material misrepresentation or material
breach on the part of the other party of its representations, warranties, covenants or other
obligations set forth in this Agreement; provided, however, that if such breach or
misrepresentation is capable of cure, the Investor or the Company, as the case may be, shall have a
period beginning on the date of receipt of notice from the other party of its intention to
terminate this Agreement pursuant to this Section 8.1 until the earlier of (i) thirty (30)
days after receipt of such notice, or (ii) the Termination Date, in which to cure such breach or
misrepresentation before the other party may so terminate this Agreement.



     8.2 Effect of Termination. If this Agreement is terminated in accordance with
Section 8.1 hereof and the transactions contemplated hereby are not consummated, this
Agreement shall become null and void and shall be of no further force and effect except that (i)
the terms and provisions of this Section 8.2, Section 6.4, Article IX
hereof and the NDA shall remain in full force and effect and (ii) any termination of this Agreement
shall not relieve either party hereto from any Liability for any willful breach of its covenants or
obligations hereunder or be deemed to constitute a waiver of any remedy for any such breach.



ARTICLE IX

MISCELLANEOUS





22











 





     9.1 No Third Party Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their respective successors and assigns. Except as expressly provided in
Article IX, nothing in this Agreement, expressed or implied, is intended to confer upon any Person
other than the parties or their respective successors and permitted assigns any rights, benefits,
remedies, obligations or liabilities under or by reason of this Agreement.



     9.2 Entire Agreement. This Agreement, together with the other Transaction Documents
and the NDA, constitutes the entire agreement among the parties with reference to the matters set
forth herein and therein and supersedes any and all prior understandings, negotiations, agreements,
or representations by or among the parties, written or oral, to the extent they relate in any way
to the subject matter hereof or thereof.



     9.3 Succession and Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties named herein and their respective successors and permitted assigns;
provided, however, that neither this Agreement nor any of the rights, interests or
obligations of such party hereunder shall be assigned or delegated by such party without the prior
written consent of the other parties, which consent may be withheld in the sole discretion of such
other parties.



     9.4 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original and all of which together shall be deemed to constitute one and the
same agreement. In addition to any other lawful means of execution or delivery, this Agreement may
be executed by facsimile signatures and may be delivered by the exchange of counterparts of
signature pages by means of telecopier transmission.



     9.5 Notices. All notices, requests, demands, claims, and other communications
hereunder shall be in writing in the English language, shall be effective upon receipt and shall be
delivered personally or by an internationally recognized express courier or sent by facsimile as
follows:


If to the Company:



The9 Limited

Building No. 3, 690 Bibo Road

Zhang Jiang Hi-Tech Park

Pudong New Area, Pudong

Shanghai 201203, People’s Republic of China

Facsimile:          +86 (21) 51729500

Attention:          Mr. Wei Ji



with a copy to:



Latham & Watkins LLP

41st Floor

One Exchange Square

8 Connaught Place, Central

Hong Kong




23









 







Facsimile:   (852) 2522 7006

Attention:    Mr. David Zhang



If to the Investor:



EA International (Studio and Publishing) Ltd.

LOM Building

27 Reid Street

Hamilton, HM 11, Bermuda.

Attention: Manager, International Publishing



with copies to:



Electronic Arts Inc.

209 Redwood Shores Parkway

Redwood City, California 94065

U.S.A.

Facsimile: (650) 628-1424

Attention:  Office of the General Counsel



Electronic Arts Hong Kong Ltd.

Suite 2111-13, IFC 2

8 Finance Street, Central

Hong Kong

Fax:  (852) 2110-9801

Attention:  Head of Legal, Asia



and



Fenwick & West LLP

801 California Street

Mountain View, CA 94041

U.S.A.

Facsimile:   (650) 938-5200

Attention:    Mark Stevens

                    David Michaels



Any party may send any notice, request, demand, claim, or other communication hereunder to the
intended recipient at the address set forth above using any other means (including personal
delivery, expedited courier, messenger service, facsimile transmission, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or
other communication shall be deemed to have been duly given unless and until it actually is
received by the intended recipient. Any such notice, request, demand, claim, or other
communication sent via facsimile transmission shall be followed by a delivery of same by mail, or
personally or by an internationally recognized express courier. Any party may change the address
to which notices, requests, demands, claims, and other communications hereunder are to be delivered
by giving the other parties notice in the manner herein set forth.




24









 








     9.6 Governing Law; Consent to Jurisdiction.



          (a) This Agreement shall be governed by and construed and interpreted in accordance with the
Law of the State of New York, which shall govern this Agreement and any controversy or claim
arising out of or relating to this Agreement without regard to any conflict of law principles.



          (b) Any dispute, claim or controversy arising out of or relating to or in connection with this
Agreement, including, without limitation, a dispute regarding the breach, termination,
enforceability or validity hereof shall be resolved by and through an arbitration proceeding to be
conducted in the Hong Kong Special Administrative Region of the PRC, in the English language, by a
panel of three (3) arbitrators in accordance with the Rules of Arbitration and Conciliation of the
International Chamber of Commerce then in effect (“ICC Rules”). The Investor on the one
hand, and the Company on the other hand, shall each select one (1) arbitrator. The third
arbitrator, who shall serve as chairperson of the arbitration tribunal, shall be selected by the
mutual agreement of the first two arbitrators, or if the first two arbitrators fail to reach
agreement within thirty (30) calendar days after their selection, such third arbitrator shall be
appointed in accordance with the ICC Rules then in effect. The parties agree to submit to the
non-exclusive personal jurisdiction of the federal and state courts sitting in the City of New
York, New York for the purpose of enforcing this agreement to arbitrate. The parties agree to be
bound by the award rendered by the arbitrators, and any judgment upon such award may be entered in
any court of competent jurisdiction. The award of the arbitrators shall be final and binding upon
the parties, and shall not be subject to any appeal or review. The parties hereby expressly
consent to the non-exclusive jurisdiction of the state and federal courts situated in the City of
New York, County of New York for this purpose and waive objection to the venue of any proceeding in
such court or that such court provides an inconvenient forum.



          (c) Notwithstanding the foregoing, any claim for preliminary injunction, temporary restraining
order or other temporary equitable relief may be brought in any court of competent jurisdiction.
The institution and maintenance of an action or judicial proceeding for, or pursuit of, such relief
shall not constitute a waiver of the right of any party, even if it is the plaintiff, to submit the
dispute to arbitration if such party would otherwise have such right. Each of the parties hereby
submits unconditionally to the non-exclusive jurisdiction of the state and federal courts located
in the City of New York, County of New York for purposes of this provision, waives objection to the
venue of any proceeding in any such court or that any such court provides an inconvenient forum and consents to the service of process upon it in connection
with any proceeding instituted under this Section 9.6(c) in the same manner as provided for
the giving of notice hereunder.



     9.7 Amendments and Waivers. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by the parties. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or
not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or
subsequent default, misrepresentation or breach. No waiver shall be effective hereunder unless
contained in a writing signed by the party sought to be charged with such waiver. No failure on
the part of any party to exercise or delay in exercising



25









 







any right hereunder shall be deemed a waiver thereof, nor shall any single or partial exercise preclude any further or other exercise of
such or any other right.



     9.8 Severability. If any provision of this Agreement or the application thereof to
any Person or circumstance is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of such provision outside of the
jurisdiction of such court or to Persons or circumstances other than those as to which it has been
held invalid, void or unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.



     9.9 Specific Performance. The parties hereto specifically acknowledge that monetary
damages are not an adequate remedy for violations of this Agreement, and that either party hereto
shall be entitled to equitable relief, including injunctive relief and specific performance, in
addition to any other remedies at Law or in equity that it may have, to enforce this Agreement or
prevent any violation hereof and, to the extent permitted by applicable Law and to the extent the
party seeking such relief would be entitled on the merits to obtain such relief, the other party
waives any objection to the imposition of such relief.



     9.10 Tax Matters. The Investor makes no representations or warranties to the Company
regarding the Tax treatment or consequences of this Agreement, any agreements referenced herein, or
with respect to any of the other transactions or agreements contemplated hereby or thereby. The
Company acknowledges that it is relying solely on the Company’s own Tax advisors in connection with
this Agreement, all agreements referenced herein, and any other transactions or agreements
contemplated hereby and thereby.



     9.11 Certain Definitions; General Interpretive Principles.



          (a) Capitalized terms used but not otherwise defined herein shall have the meaning specified
in Annex A hereto.



          (b) The headings contained in this Agreement or in any Exhibit or Schedule hereto and in the
table of contents are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. When a reference is made
herein to a Section, Article, Exhibit or Schedule, such reference shall be to a section or article
of, or an exhibit or schedule to, this Agreement unless otherwise indicated. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) any
noun or pronoun shall be deemed to include the plural as well as the singular and to cover all
genders, (ii) the terms “include”, “includes” and “including” shall be deemed to followed by the
words “without limitation” and (iii) the words “hereof,” “herein” and similar words refer to this
Agreement as a whole (including the Exhibits and Schedules hereto).



[The remainder of this page intentionally left blank]





26











 





Execution Copy




     IN WITNESS WHEREOF, the parties hereto have executed this Investment Agreement as of the date
first above written.



	 	 	 	 	 
	 	THE9 LIMITED

 	 
	 	By:  	/s/ J. Zhu
 	 
	 	Name:  	J. Zhu 	 
	 	Title:  	Chairman & CEO 	 
	 



	 	 	 	 	 
	 	EA INTERNATIONAL (STUDIO AND PUBLISHING) LTD.

 	 
	 	By:  	/s/ Varinder Shini
 	 
	 	Name:  	Varinder Shini 	 
	 	Title:  	Manager, International Publishing 	 
	 



[SIGNATURE PAGE TO THE INVESTMENT AGREEMENT]




 









 








ANNEX A




DEFINITIONS





     As used in the Agreement, the following capitalized terms shall have the following meanings:



     “Affiliate” of any Person means any other Person that directly, or indirectly through
one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first
Person.



     “Agreement” means this Investment Agreement, including all Exhibits and Schedules
hereto, as the same may be amended from time to time in accordance with the provisions hereof.




     “Basket Amount” has the meaning set forth in Section 7.2(f).



     “Business Day” means any day, other than a Saturday, Sunday or a day on which banking
institutions in the PRC or the State of New York are authorized or obligated by Law or executive
order to close.



     “Charter Documents” means, with respect to any Entity, the charter or bylaws or other
equivalent organizational or governing documents of such Entity.



     “Claim Notice” has the meaning set forth in Section 7.4(a).



     “Closing” has the meaning set forth in Section 1.1(b).



     “Closing Date” has the meaning set forth in Section 1.1(b).



     “Code” means the United States Internal Revenue Code of 1986, as amended.



     “Company” has the meaning set forth in the preamble.



     “Company Board of Directors” means the board of directors of the Company.



     “Company Material Adverse Effect” means any event, fact, circumstance or occurrence
that, individually or in the aggregate with any other events, facts, circumstances or occurrences,
results in or would reasonably be expected to result in a material adverse change in or a material
adverse effect on any of (i) the financial condition, results of operations, business, or
operations of the Company Parties taken as a whole, except to the extent that any such Company
Material Adverse Effect results from (x) the public disclosure of the transactions contemplated
hereby, (y) changes in GAAP generally applicable to comparable companies, or (z) changes in general
economic and market conditions (provided, in the case of clause (z) that such changes do not affect
any of the Company Parties disproportionately as compared to any of the Company Parties’
competitors), or (ii) the ability of the Company to consummate the transactions contemplated by the
Agreement and to perform its material obligations under the Agreement.



A-1









 





     “Company Party” or “Company Parties” means each of the Company, its
Subsidiaries and Shanghai IT.



     “Company Party Transaction” means (i) any sale of all or substantially all of the
assets of the Company, (ii) a merger, consolidation, amalgamation, share exchange, recapitalization
(involving a business combination) or similar business combination transaction involving the
Company (x) pursuant to which the outstanding shares of the Company’s capital stock would be
converted into cash or securities of another Person or (y) which would result in a third party or
Group beneficially owning, when combined with any other shares of the Company owned by such third
party or Group, more than 50% of the then-outstanding voting securities of the Company; or (iii)
any other acquisition (including by way or merger, consolidation, share exchange or otherwise) by
any Person or Group of beneficial ownership of securities representing more than 50% of the
outstanding Ordinary Shares.



     “Company Reports” has the meaning set forth in Section 3.7(a).



     “Confidential Information” shall mean all information relating, directly or
indirectly, to the Transaction Documents or to EARTH or the business, products, markets, condition
(financial or other), operations, assets, liabilities, results of operations, cash flows or
prospects of EARTH (whether prepared by , its advisors or otherwise) which is delivered, disclosed
or furnished by or on behalf of EARTH to the Company or to its Representatives, before, on or after
the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or
which the Company or its Representatives otherwise learn or obtain, through observation or through
analysis of such information, data or knowledge, and shall also be deemed to include all notes,
analyses, compilations, studies, forecasts, interpretations or other documents prepared by the
Company or its Representatives that contain, reflect or are based upon, in whole or in part, the
information delivered, disclosed or furnished to the Company or its Representatives pursuant
hereto. Notwithstanding any other provision hereof, the term Confidential Information shall not
include information which (i) is or becomes generally available to the public other than as a
result of a disclosure by the Company or its Representatives, (ii) was within the Company’s
possession and developed by it prior to it being furnished to it by or on behalf of EARTH, provided
that the source of such information was not bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, EARTH or any other party with
respect to such information or (iii) becomes available to the Company on a non-confidential basis
from a source other than EARTH or any of its Representatives, provided that such source is not
known by the Company to be bound by a confidentiality agreement with, or other contractual, legal
or fiduciary obligation of confidentiality to, EARTH or any other party with respect to such
information.



     “Contract” means any contract (written or oral), undertaking, commitment, arrangement,
plan or other legally binding agreement or understanding.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the affairs or management of a Person through the ownership of voting
securities or otherwise, including, without limitation, having the power to elect a majority of the
board of directors or other governing body of such Person, and “Controlling” and “Controlled” have
correlative meanings.



A-2









 





     “Cure Period” means the period of 90 days following the date (which date shall be
during the period following the first anniversary of the Closing Date until the second anniversary
of the Closing Date) on which the Investor shall have given notice to the Company as provided in
Section 7.2(a) of the failure of the representation contained in Section 3.1(e) to
be true and correct.



     “Disclosure Schedule” means the Disclosure Schedule of the Company attached as
Exhibit H hereto and dated the date hereof; provided, that the Disclosure Schedule may be
revised, amended or supplemented from time to time from the date hereof prior to the Closing with
the express prior written approval of the Investor.



     “Dispute Notice” has the meaning set forth in Section 7.4(e). 



     “EARTH” means Electronic Arts Inc., a Delaware corporation, with its principal place
of business at 209 Redwood Shores Parkway, Redwood City, California 94065, U.S.A.



     “Enforceability Exceptions” has the meaning set forth in Section 3.1(a). 



     “Entity” means a partnership, limited liability partnership, corporation, limited
liability company, association, joint stock company, trust, estate, joint venture, or
unincorporated organization or other legal Person established or existing pursuant to the Laws of
any jurisdiction.



     “Existing Registration Rights Agreement” means the registration rights agreement,
dated as of November 25, 2004, by and among the Company and the other parties thereto.



     “Exchange Act” means the United States Securities Exchange Act of 1934, as amended.



     “Exclusivity Period” has the meaning set forth in Section 6.5(b).



     “Financial Statements” means the unaudited financial information for the Company for
each of the four fiscal quarters in the year ended December 31, 2006.



     “Framework Agreements” means (i) the Old WoW Framework Agreement, and (ii) the
Cooperation Framework Agreement, dated January 1, 2004, by and among The9 Computer Technology
Consulting (Shanghai) Co., Ltd., Shanghai IT and 9Webzen Shanghai Co., Ltd. and the Supplementary
Agreement to such Cooperation Framework Agreement, dated January 4, 2007, by and among The9
Computer Technology Consulting (Shanghai) Co., Ltd., Shanghai IT and 9Webzen Shanghai Co., Ltd.



     “Fully-Diluted Basis” means on a basis that includes all shares actually outstanding,
and all shares issuable upon exercise of any actually outstanding options, warrants or other rights
or on conversion of any actually outstanding convertible securities.



     “GAAP” means, with respect to any jurisdiction, generally accepted accounting
principles applied on a consistent basis over the relevant periods.




A-3











 





     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any court, tribunal, arbitrator, administrative agency, commission or other
governmental official, body, instrumentality, agency or authority.



     “Group” has the meaning set forth in the 1934 Act.



     “ICC Rules” has the meaning set forth in Section 9.6(b).



     “Indebtedness” means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person, and whether contingent or fixed (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (c) any obligation, issued or assumed as the deferred purchase price
(whether created or arising under any conditional sale or other title retention agreement or
otherwise), with respect to property, assets or services acquired by such Person (even though the
rights and remedies of the sellers or lenders under such agreement in the event of default are
limited to repossession or sale of such property), (d) all obligations of such Person as lessee
under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (e)
all obligations of such Person under banker’s acceptances, letters of credit, “documents against
acceptance” or similar facilities, (f) all obligations of such Person to purchase, redeem, retire,
defease or otherwise acquire for value any capital stock of such Person, valued, in the case of
redeemable preferred stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends, (g) any interest rate or currency swap or similar hedging
agreement and (h) all indebtedness of others referred to in clauses (a) through (g) above
guaranteed directly or indirectly in any manner by such Person.



     “Indemnified Parties” has the meaning set forth in Section 7.2(a).



     “Indemnity Notice” has the meaning set forth in Section 7.4(e). 



     “Intellectual Property” means, to the extent defined and recognized by the Laws of a
particular jurisdiction, (a) any intellectual property or proprietary rights in any jurisdiction,
whether owned or held for use under license, whether registered or unregistered, including such
rights in (i) all inventions, invention disclosures, all improvements thereto (whether patentable
or unpatentable and whether or not reduced to practice), and all issued patents, pending patent
applications, and any and all divisions, continuations, continuations-in-part, reissues, continuing
patent applications, reexaminations and extensions thereof, any counterparts claiming priority
therefrom, utility models, design patents, utility models, patents of importation/confirmation,
certificates of invention, certificates of registration and similar rights, (ii) all trademarks,
service marks, certification marks, trade dress, logos, trade names, and corporate names, and all
applications, registrations, and renewals in connection therewith, (iii) all works of authorship
(whether or not copyrightable), all copyrights, all moral rights and all applications,
registrations, and renewals in connection therewith, (iv) all trade secrets and confidential
business information and rights to limit the use or disclosure thereof by any Person (including
ideas, research and development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications, customer and supplier
lists, pricing and cost information, and business and marketing plans and proposals), (v) all
computer software, operating systems, data files, source and object codes, user interfaces,
manuals,



A-4









 







databases, technical specifications and documentation and (vi) mask works, designs and
Internet domain names, (b) all copies and tangible embodiments of any of the foregoing (in whatever
form or medium), (c) claims, causes of action or defenses relating to the enforcement of any of the
foregoing, and (d) the goodwill associated with the foregoing.



     “Investment” means the issuance and sale by the Company and the purchase by the
Investor of the Purchased Shares under this Agreement.



     “Judgment” means any judgment, writ, award, injunction, order or decree of or by any
arbitrator, court, judge, justice or magistrate, including any bankruptcy court or judge, and any
order, ruling or determination of or by any other Governmental Authority.



     “Knowledge” means the actual knowledge of the Company’s executive officers.



     “Law” means any law, treaty, statute, ordinance, code, rule, regulation or Judgment,
including, without limitation, any Tax law. 



     “Liabilities” means all Indebtedness and other liabilities (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether fixed or unliquidated, and whether due or to become due), including, without limitation,
any such liability for Taxes.



     “License Agreement” has the meaning set forth in Section 2.1(a).



     “Lien” means any mortgage, pledge, lien (statutory or other), security interest or
encumbrance of any kind, and any transfer restriction, preemptive right, right of first refusal,
right of first offer, drag along right or similar restriction.



     “Losses” means all losses, penalties, charges, claims, damages, dues, fines, interest,
costs, liabilities, diminution in market value, expenses and fees (including court costs and
reasonable attorneys’ fees and expenses) incurred by any Person; provided that with respect to a
failure of the representation set forth in Section 3.1(e) to be true and correct,
“diminution in market value” with respect to any Purchased Share shall mean (i) in connection with
a notice pursuant to Section 7.2(a) with respect to such failure delivered to the Company
by the Indemnified Party during the period following the Closing Date until the first anniversary
thereof, any diminution in market value resulting from such failure from the Original Price to the
relevant price after the first anniversary of the Closing Date and (ii) in connection with a notice
pursuant to Section 7.2(a) with respect to such failure delivered to the Company by the
Indemnified Party during the period following the first anniversary of the Closing Date until the
second anniversary of the Closing Date, any diminution in market value arising from such failure
from the Original Price to the relevant price after the expiration of the Cure Period.



     “Material Adverse Effect” means, with respect to any Person, any event, fact,
circumstance or occurrence that, individually or in the aggregate with any other events, facts,
circumstances or occurrences, results in or would reasonably be expected to result in a material
adverse change in or a material adverse effect on any of (i) the financial condition, results of
operations, business or operations of such Person and its Subsidiaries taken as a whole, or (ii)
the



A-5









 







ability of such Person to consummate the Transactions and to perform its material obligations
under the Transaction Documents.



     “MII” means the Ministry of Information Industry in the PRC.



     “MII Notice” means the Notice on Strengthening the Administration of Foreign
Investment in the PRC Telecoms Sector issued by the MII on July 26, 2006.



     “NDA” has the meaning set forth in Section 6.3.



     “New WoW Framework Agreement” has the meaning set forth in Section 2.1(a)(v).



     “Old WoW Framework Agreement” means the Framework Agreement dated August 30, 2005, by
and among The9 Interactive Information Technology (Shanghai) Co., Ltd., The9 Computer Technology
Consulting (Shanghai) Co., Ltd. and Shanghai IT.



     “Ordinary Shares” has the meaning set forth in the recitals.



     “Original Price” means $36.96 per share, as adjusted for any stock split, share
dividend; any combination, subdivision or reclassification of the Ordinary Shares, any
recapitalization, or any similar transaction with respect to the Ordinary Shares effected after the
Closing.



     “party” or “parties” has the meaning set forth in the preamble.



     “Person” means an individual, Entity, or Governmental Authority.



     “PRC” means the People’s Republic of China.



     “Purchase Price” has the meaning set forth in Section 1.1(a). 



     “Purchased Shares” has the meaning set forth in Section 1.1(a).



     “Quarterly Reports” means each of the Company’s reports on Form 6-K filed with the SEC
on May 30, 2006, August 10, 2006, November 17, 2006 and February 16, 2007, respectively.



     “Registration Rights Agreement” has the meaning set forth in Section
2.1(a)(iii).



     “Regulatory Approvals” means (i) any and all certificates, permits, licenses,
franchises, concessions, grants, consents, approvals, orders, filings, registrations,
authorizations, waivers, variances or clearances (including, in the case of the Company Parties,
the Internet content provision, Internet culture operation and Internet publishing licenses held by
Shanghai IT) of, with and from all Governmental Authorities, and (ii) any and all waiting periods
imposed by applicable Laws.



     “Related Person” means, with respect to any Person, (a) any holder or beneficial owner
(directly or indirectly) of equity securities, or rights to acquire equity securities, representing
10% or more of the voting equity securities of such Person (a “10% Stockholder”); (b) any
Affiliate of such specified Person or of any such 10% Stockholder thereof; (c) any Person that



A-6









 







serves as a director, officer, partner, employee, executor or trustee (or in similar capacity)
of such Person or of any 10% Stockholder thereof, or any of their respective Affiliates; (d) any
Person with respect to which such specified Person serves as a general partner or trustee (or in a
similar capacity); and (e) any relative or spouse (or relative of such spouse) who resides with, or
is a dependent of, any Related Person described in clauses (a), (b), (c) or (d) of this definition.



     “Representatives” means, with respect to any Person, any officers, directors, limited
or general partners or members, employees, agents, attorneys, accountants, consultants, equity
financing partners or financial advisors of such Person (or of such Person’s successors or assigns)
or other Person associated with, or acting on behalf of, such Person (or such Person’s successors
and assigns).



     “Required Regulatory Approvals” means all Regulatory Approvals necessary or required
for or in connection with the execution and delivery of the Transaction Documents and the
consummation of the Investment and the other Transactions.



     “Rights” means, with respect to any Person, any subscription, option, warrant,
convertible or exchangeable security or other right, however denominated, to subscribe for, vote,
purchase or otherwise acquire any capital stock, other equity interest or other security of any
class or series of such Person, with or without payment of additional consideration in cash or
property, either immediately or upon the occurrence of a specified date or a specified event or the
satisfaction or happening of any other condition or contingency.



     “SAFE Registration “ shall mean the registration that a PRC resident is required to
make with the State Administration of Foreign Exchange or its local branch pursuant to the Notice
on Relevant Issues Concerning Foreign Exchange Administration for PRC Residents to Engage in
Financing and Inbound Investment Via Overseas Special Purpose Vehicle or any successor regulation.



     “SEC” means the U.S. Securities and Exchange Commission.



     “Section 7.2(a) Notice” has the meaning set forth in Section 7.3(a). 



     “Securities Act” means the Securities Act of 1933, as amended.



     “Shanghai Advertisement” means Shanghai Jiucheng Advertisement Co., Ltd.



     “Shanghai IT” means Shanghai The9 Information Technology Co., Ltd. (formerly known as
Shanghai Jiucheng Information Technology Co., Ltd.).



     “Shareholders Agreement” has the meaning set forth in Section 2.1(b).



     “Structuring” has the meaning set forth in Section 3.1(d).



     “Structuring Documents” has the meaning set forth in Section 3.1(d).



     “Subject Stock” has the meaning set forth in Section 7.3(a).



A-7









 





     “Subsidiary” means, as to any Person, any other Person of which such Person (either
alone or through or together with any other Subsidiary) owns or has rights to acquire, directly or
indirectly, securities or other equity interests representing more than 50% of the stock or other
equity interests the holders of which are generally entitled to vote for the election of the board
of directors or other governing body of such other Person.



     “Survival Date” means the date twelve (12) months after the Closing Date;
provided, that (a) with respect to the representations and warranties contained in
Section 3.1(e), the Survival Date shall mean the second anniversary of the Closing Date,
and, with respect to any matter set forth in any claim or notice or other communication from any
Government Authority received by the Company prior to such second anniversary, until such time as
such matter is finally and fully resolved and (b) with respect to the representations and
warranties contained in Section 3.11, the Survival Date shall mean the fifth anniversary of
the Closing Date.



     “Tax” means all taxes, however denominated, including any interest, additions to tax
or penalties that may become payable in respect thereof, imposed by any federal, state, local,
foreign or Chinese government or any agency or political subdivision of any such government, which
taxes shall include, without limiting the generality of the foregoing, all income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, worker’s compensation, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of
any kind whatsoever, whether disputed or not.



     “Tax Return” means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment thereto, and including
any amendment thereof, required to be filed under any statute, rule or regulation.



     “Termination Date” has the meaning set forth in Section 8.1(a). 



     “Third Party Claim” has the meaning set forth in Section 7.4(a).



     “Transaction Documents” shall mean this Agreement, the Shareholders Agreement and the
Registration Rights Agreement.



     “Transfer Notice” has the meaning set forth in Section 7.3(a).



     “Transactions” means all of the transactions contemplated by this Agreement and the
other Transaction Documents, including the Investment.




A-8












 





EXHIBIT A




License Agreement




[intentionally omitted]




 









 





EXHIBIT B




Form of Shareholders Agreement




[intentionally omitted]




 









 





EXHIBIT C




Form of Registration Rights Agreement




[intentionally omitted]




 









 





EXHIBIT D




Form of New WoW Framework Agreement




[intentionally omitted]




 









 





EXHIBIT E




Required Regulatory Approvals for Closing




Schedule 2.1(d): None




Section 2.2(d): None




 









 








EXHIBIT F




Opinion of PRC Counsel




[intentionally omitted]




 









 





EXHIBIT G




Opinion of Cayman Islands Counsel




[intentionally omitted]




 









 





EXHIBIT H




Disclosure Schedule




[intentionally omitted]