Exhibit 4.5


 


CHINACACHE INTERNATIONAL HOLDINGS LTD.


 


THIRD AMENDED AND RESTATED BUY-OUT AGREEMENT


 


This Third Amended and
Restated Buy-Out Agreement is made as of May 14, 2010 (this “Agreement”) between
Chinacache International Holdings Ltd., a Cayman Islands exempted company (the “Company”) and Intel
Capital (Cayman) Corporation (formerly known as Intel Capital Corporation), a
Cayman Islands company (“Intel
(Cayman)”) and Intel Capital Corporation, a Delaware corporation
(“Intel (Delaware)”
and together with Intel Cayman, “Intel”).


 


R E C I T A L S


 


A.            Pursuant to the Series A
Preferred Shares Purchase Agreement dated as of September 16, 2005 (the “Series A Purchase Agreement”), Intel
(Cayman) purchased 23,076,923 Series A Preferred Shares of the Company.


 


B.            Pursuant to the Series B
Preferred Shares Purchase Agreement dated April 11, 2007 (the “Series B Purchase Agreement”), Intel
(Delaware) purchased 5,123,213 Series B Preferred Shares of the Company.


 


C.            Intel (Delaware) and Qiming Venture
Partners, L.P., Qiming Managing Directors Fund, Ignition Venture Partners
III, L.P. and Ignition Managing Directors Fund III, LLC entered into a Sale and
Purchase Agreement dated May 21, 2008, pursuant to which Intel (Delaware)
sold 5,123,213 Series B Preferred Shares of the Company to Qiming Venture
Partners, L.P., Qiming Managing Directors Fund, Ignition Venture Partners
III, L.P. and Ignition Managing Directors Fund III, LLC.


 


D.            Pursuant to the Series C
Preferred Shares Purchase Agreement dated December 11, 2009 (the “Series C Purchase Agreement”),
the Company issued to Intel (Delaware) 932,821 Series C-1 Preferred
Shares, 1,302,920 Series C-2 Preferred Shares and 564,626 Series C-3
Preferred Shares.


 


E.             On April 30, 2010, a Sale and
Purchase Agreement (the “Sale
and Purchase Agreement”) was entered into, pursuant to which
Starr International Cayman, Inc. sold 25,298,900 Series B Preferred
Shares and 2,372,825 Series C-2 Preferred Shares of the Company to Qiming
Venture Partners, L.P., Qiming Managing Directors Fund, Ignition Venture
Partners III, L.P. and Ignition Managing Directors Fund III, LLC, Investor
Investments Asia Limited and Investor Group Asia LP, SIG China Investments
One, Ltd., and Tiger Partners, L.P.


 


F.             Pursuant to the transactions
contemplated by the Sale and Purchase Agreement, the Company, Intel and
the other persons named therein have, on May 14, 2010, entered into the
Third Amended and Restated Investors’ Rights Agreement (the “IRA”).


 


G.            The Company and Intel entered into
the Second Amended and Restated Buy-Out Agreement dated as of December       ,
2009 (the “Prior
Agreement”), which agreement may be amended with the written
consent of Intel and the Company, and the parties now desire to amend and
restate such agreement by entering into this Agreement.


 


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NOW THEREFORE, in
consideration of the mutual promises herein contained, and other consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereby
agree that the Prior Agreement shall be amended and restated in its entirety by
this Agreement, and the parties hereto agree as follows:


 


1.                                       Definitions.


 


Reference is hereby made to
Section 9.2 of the IRA and Article 10B of the Company’s Fourth
Amended and Restated Articles of Association (the “Articles”).
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the IRA and the Articles. If and to the extent that the Articles
conflict with the provisions of the IRA, the IRA shall prevail.


 


2.                                       Buy-Out
Right.


 


2.1           Drag-Along Notice.
Subject to the occurrence of a Drag-Along Sale, and upon written notice by or
on behalf of the Company, accompanied by substantially final written
agreements(s) relating to the Drag-Along Sale (“Drag Agreements”), setting forth the
material terms of a proposed Drag-Along Sale (the “Drag-Along Notice”), Intel
may at its sole discretion either (i) accept the terms as contained in the
Drag-Along Notice by signing a counterpart of the Drag Agreements within 10
Business Days after the date of the Drag-Along Notice; or (ii) decline the
terms of the Drag-Along Sale, as contained in the Drag-Along Notice, by
notifying the Company within ten (10) Business Days of the date thereof,
in which case Intel shall not be bound to participate in the Drag-Along Sale
and the Company shall have the obligations (the “Buy-Out Option”) to purchase from Intel,
or to designate an Affiliate or Shareholder to purchase from Intel, all, but
not less than all, of the Preferred Shares held by Intel, or Ordinary Shares
resulting from the conversion of such Preferred Shares and dividends or other
distributions declared and paid on any Shares held by Intel in the form of
Shares (the “Intel
Shares”). For the purposes hereof, if Intel does not respond in
writing to a Drag-Along Notice within ten (10) Business Days, Intel shall
be deemed to have declined the terms of the Drag-Along Sale.


 


2.2                                 Terms of
the Buy-Out Option


 


(a)           Exercise
period & expiry. The Buy-Out Option shall be exercised by
the delivery of a written notice to Intel at any time before the earlier of
(i) sixty (60) days after the date of the Drag-Along Notice, or
(ii) ten (10) days prior to consummation of the proposed Drag-Along
Sale. If the proposed Drag-Along Sale is not consummated by the sixtieth (60th) day after the date of the
Drag-Along Notice, the Buy-Out Option shall expire, and each party hereto shall
be discharged of its obligations thereunder without any further liability.


 


(b)           Price. The
price payable for each Intel Share purchased upon the exercise of the Buy-Out
Option (the “Strike Price”) shall be the price per share payable to the other
Shareholders for shares of the same class and series of the Company in the
Drag-Along Sale, net of applicable taxes and other fees, commissions and
expenses in connection with such sale, and subject to hold-backs, or claw-backs
for any escrow or similar obligations, and any earn-out,


 


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contingent payment or
similar arrangements applicable to the same class and series of share as such
Intel Share. For the avoidance of doubt, the consideration Intel receives for
the sale of each Intel Share pursuant to the Buy-Out Option is the same in
economic terms as the consideration actually received by other Shareholders
pursuant to the Drag-Along Sale such that Intel would receive the same economic
result as if Intel were a Shareholder who sold Shares of the same class and
series of the Company in the Drag-Along Sale. The Buy-Out Option shall be
governed exclusively by the terms set forth in this Agreement.


 


(c)           Settlement.
The consummation of a sale of the Intel Shares pursuant to an exercise of the
Buy-Out Option shall be simultaneous with the consummation of the Drag-Along
Sale (and if the Drag-Along Sale is consummated in several closings, the sale
of the Intel Shares pursuant to the Buy-Out Option shall be similarly
consummated) and shall be effected by delivery of share certificate(s) representing
the Intel Shares, free of all encumbrances, to the Company or such Person or
Persons as the Company may designate, against payment of the Strike Price to
Intel.


 


(d)           Compliance with laws.
If Intel in its reasonable judgment believes in good faith that delivery of the
Intel Shares pursuant to the exercise of the Buy-Out Option would subject Intel
to a material risk of liability under applicable securities laws, Intel
may without liability (i) require appropriate assurances as a condition to
delivery of the Intel Shares, and (ii) may suspend delivery of the Intel
Shares until such assurance is provided.


 


(e)           Assignment.
Subject to the foregoing provisions, the Company may assign the Buy-Out Option
to its Affiliates or Shareholders or the purchaser or transferee in the
Drag-Along Sale, but not to any other third party without Intel’s express
written consent. Intel may assign the Buy-Out Option to any of its Affiliates
or to a third party in connection with a transfer of its Shares.


 


(f)            Title and Encumbrances.
The only representation, warranty or covenant that Intel may be requested to
make or give is that Intel has good and marketable title to all Intel Shares
delivered pursuant to an exercise of the Buy-Out Option, free of any
encumbrances whatsoever.


 


3.             Amendment. This
Agreement may not be amended or modified without the express written consent of
each party.


 


4.             Out of Pocket
Expenses. Intel shall not be obligated to pay any out-of-pocket
expenses pursuant to a Drag-Along Sale until the consummation thereof (except
reasonable expenses for postage, copies, etc.) and shall not be obligated
to pay any expenses incurred in connection with a consummated Drag-Along Sale,
except indirectly to the extent such costs are incurred for the benefit of all
of the Shareholders and are paid by the Company, any Affiliate or designee of the
Company facilitating the Drag-Along Sale pursuant to this Agreement, or the
acquiring party in the Drag-Along Sale. Costs including tax incurred by or on
behalf of Intel for its sole benefit shall not be considered costs of the
transactions contemplated hereunder.


 


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5.             Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws
of the Hong Kong Special Administrative Region. Any disputes in relation to the
terms hereof shall be settled as provided in Section 13.12 of the IRA.


 


6.             Counterparts and
Facsimile Execution. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any counterpart or other
signature delivered by facsimile by any party shall be deemed for all purposes
as being a good and valid execution and deliver of this Agreement by that
party.


 


7.             Headings. The
headings of the Sections of this Agreement are for convenience and shall not by
themselves determine the interpretation of this Agreement.


 


8.             Severability. In
case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


 


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IN
WITNESS WHEREOF, the parties have executed this Third Amended and Restated
Buy-Out Agreement as of the date first written above.


 


 


	
   

  	
  CHINACACHE INTERNATIONAL HOLDINGS LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kou Xiaohong

  
	
   

  	
  Name:

  	
  Kou
  Xiaohong

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INTEL CAPITAL (CAYMAN) CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Michael J Scown

  
	
   

  	
   

  	
  Michael
  J Scown

  
	
   

  	
  Print
  Name:

  	
  Authorised Signatory

  
	
   

  	
   

  
	
                 

  	
  Title: 

  	
  Authorized
  Signatory

  
	
   

  
	
   

  
	
  INTEL
  CAPITAL CORPORATION

  
	
   

  
	
   

  
	
  By: 

  	
  /s/
  Michael J Scown

  
	
   

  	
  Michael
  J Scown

  
	
  Print
  Name:

  	
  Authorised Signatory

  
	
   

  	
   

  
	
  Title: 

  	
  Authorized
  Signatory

  
							



 


 


[Signature
to Third Amended and Restated Buy Out Agreement]