Exhibit 4.45





Exhibit 4.45




EQUITY PURCHASE AGREEMENT




AGREEMENT (this “Agreement”) dated as of April 20, 2011 between (1) the Persons set forth in
Schedule I hereto (collectively, “Sellers”), (2) Ku6 Media Co., Ltd., a company
incorporated under the laws of the Cayman Islands (“Buyer”) and (3) Hangzhou Soushi Networking Co.,
Ltd. , a limited liability company formed under the laws of the PRC (the
“Company”).



WITNESSETH:




WHEREAS, Sellers are all of the shareholders of the Company;



WHEREAS, Sellers intend to sell to Buyer (or its designee), and Buyer intends to (or cause its
designee to) purchase from Sellers, all of the equity interest in the Company subject to the terms
and conditions herein;



WHEREAS, each Seller intend to enter into a lock-up agreement with Buyer to lock up the Buyer
Shares (as defined below) to be received by such Seller as consideration for the sale of such
equity interest.



NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the
parties hereby agree as follows:



ARTICLE 1

Definitions




Section 1.01. Definitions. (a) The following terms, as used herein, have the following
meanings:



“ADSs” means the American Depositary Shares of Buyer, each representing 100 Buyer Shares,
listed on NASDAQ.



“Applicable Law” means, with respect to any Person, any national, federal, state, local or
foreign law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code,
rule, regulation, order, injunction, judgment, decree, ruling, directive, guidance, instruction,
direction, permission, waiver, notice, condition, limitation, restriction or prohibition or other
similar requirement enacted, adopted, promulgated, imposed, issued or applied by a Governmental
Authority that is binding upon or applicable to such Person, its properties or assets or its
business or operations, as amended unless expressly specified otherwise.


 


 









 





“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks
in Shanghai, Beijing or Hong Kong are authorized or required by Applicable Law to close.



“Buyer Shares” means the ordinary shares of Buyer, par value US$0.00005 per share.



“Closing Date” means the date of the Closing.



“Government Official” shall be broadly defined to include any (i) officer or employee at any
level of the government of the PRC or any other country (including its political subdivisions), or
any department, agency, or instrumentality thereof, or of a public international organization, or
any natural person acting in an official capacity for or on behalf of any such government or
department, agency or instrumentality or any such public international organization; (ii) any
candidate for political office; or (iii) any person who holds or held a prominent public position
in the PRC or any other country (including its political subdivisions), including head of state,
senior government, judicial or military official, official of a political party, candidate for
political office, or senior executive of a state-owned enterprise of national importance.



“Governmental Authority” means any multinational, foreign, national, federal, state, local or
other governmental, statutory or administrative authority, regulatory body or commission or any
court, tribunal or judicial or arbitral authority which has any jurisdiction or control over either
party (or their affiliates).



“Intellectual Property” means (i) trademarks, service marks, brand names, certification marks,
trade dress, domain names and other indications of origin, the goodwill associated with the
foregoing and registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of any such registration
or application, (ii) inventions and discoveries, whether patentable or not, in any jurisdiction,
patents, applications for patents (including divisions, continuations, continuations in part and
renewal applications), and any renewals, extensions or reissues thereof, in any jurisdiction, (iii)
trade secrets, (iv) writings and other works, whether copyrightable or not, in any jurisdiction,
and any and all copyrights, whether registered or not, and registrations or applications for
registration of copyrights in any jurisdiction, and any renewals or extensions thereof, (v) moral
rights, database rights, design rights, industrial property rights, publicity rights and privacy
rights, (vi) Software and (vii) any similar intellectual property or proprietary rights.



“IT Assets” means computers, computer software, firmware, middleware, servers, workstations,
routers, hubs, switches, data communication lines and all other information technology equipment,
and all associated documentation owned by the Company or any of its Subsidiary or licensed or
leased by the Company or
any of its Subsidiary pursuant to written agreement (excluding any public networks).


 


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“Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge,
security interest, encumbrance or other adverse claim of any kind in respect of such property or
asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any
property or asset which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention agreement relating to
such property or asset.



“Lock-Up Agreement” of any Seller means a Lock-Up Agreement to be entered into on the Closing
Date by such Seller (in the case of Shanda Networking, by Shanda Media) and Buyer, substantially in
the form attached hereto as Exhibit A.



“Mr. Wu” means Wu Bin, a PRC citizen with ID Number 330724197310070053 and a shareholder of
the Company.



“Mr. Yang” means Lianghai Yang, a PRC citizen with ID Number 350322197601131556 and a
shareholder of the Company.



“NASDAQ” means the NASDAQ Stock Market.



“1933 Act” means the Securities Act of 1933 of the U.S., as amended, and the rules and
regulations promulgated thereunder.



“Person” means an individual, company, corporation, partnership, limited liability company,
association, trust or other entity or organization, including a Governmental Authority.



“PRC” means the People’s Republic of China, excluding, for purposes of this Agreement only,
Hong Kong, Macau and Taiwan.



“PRC GAAP” means generally accepted accounting principles in the PRC.



“PRC IP Laws” means,
collectively, , ,  and other Applicable Laws relating to the intellectual property rights of
contents posted on or otherwise accessible through the internet.



“SAIC” means the State Administration of Industry and Commerce of the PRC or its authorized
local branch, as the case may be, or any successor thereto.


 


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“Shanda Media” means Shanda Media Group Limited, a company incorporated under the laws of the
British Virgin Islands.



“Shanda Networking” means Shanghai Shanda Networking Co., Ltd., a company formed under the
laws of the People’s Republic of China and a shareholder of the Company.



“Software” means computer software (whether in source code or object code form).



“Subsidiary” means, with respect to any Person, any entity (i) of which securities or other
ownership interests having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at any time directly or indirectly owned by such
Person or (ii) directly or indirectly Controlled by such Person.



“U.S.” means the United States of America.



(b) Each of the following terms is defined in the Section set forth opposite such term:



	 	 	 
	Term	 	Section
	Agreement
	 	Preamble
	Buyers
	 	Preamble
	Buyer Designee
	 	2.01
	Closing
	 	2.02
	Company
	 	Preamble
	Consideration Shares
	 	2.01
	Employment Agreements
	 	6.07
	Initial Company Designee
	 	6.17
	Material Contracts
	 	4.09
	Permits
	 	4.14
	Seller
	 	Preamble
	Social Insurance
	 	4.18
	Sold Interest
	 	2.01






Section 1.02. Other Definitional and Interpretative Provisions. The words “hereof”, “herein”
and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The captions herein are included for
convenience of reference only and shall be ignored in the construction or interpretation hereof.
References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and
Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto
or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth
in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined
therein, shall have the meaning as defined in this Agreement. Any singular term


 


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in this Agreement shall be deemed to include the plural, and any plural term the singular.
Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation”, whether or not they are in fact followed
by those words or words of like import. “Writing”, “written” and comparable terms refer to
printing, typing and other means of reproducing words (including electronic media) in a visible
form. References to any agreement or contract are to that agreement or contract as amended,
modified or supplemented from time to time in accordance with the terms hereof and thereof;
provided that with respect to any agreement or contract listed on any schedules hereto, all such
amendments, modifications or supplements must also be listed in the appropriate schedule.
References to any Person include the successors and permitted assigns of that Person. References
from or through any date mean, unless otherwise specified, from and including or through and
including, respectively. References to “law”, “laws” or to a particular statute or law shall be
deemed also to include any and all applicable Laws.



ARTICLE 2

Purchase and Sale




Section 2.01. Purchase and Sale. Upon the terms and subject to the conditions of this
Agreement, each Seller agrees to sell to Buyer or a Person designated by Buyer in writing at least
5 Business Days prior to the Closing Date (the “Buyer Designee”), and Buyer agrees to purchase or
cause the Buyer Designee to purchase, from such Seller, the equity interest in the Company set
forth opposite the name of such Seller in Schedule I hereto (such Seller’s “Sold
Interest”), on the Closing Date, free and clear of any Lien and any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of such equity interest)
in exchange for the issuance to such Seller (or Shanda Media in the case of Shanda Networking) of a
number of Buyer Shares equal to the number set forth opposite the name of such Seller in
Schedule II hereto (such Seller’s “Consideration Shares”).




Section 2.02. Closing. The closing (the “Closing”) of the transactions described in Section
2.01 shall take place as soon as possible, but in no event later than 5 Business Days, after
satisfaction of the conditions set forth in Article 7 (or at such other time as the parties hereto
may agree) at a place as the parties hereto may agree. At the Closing,




(a) Sellers shall deliver or cause to be delivered to Buyer the amended business
license of the Company issued by the SAIC indicating that Buyer or the Buyer Designee is
the sole shareholder of the Company; and


 


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(b) Buyer shall deliver to each Seller (i) a certified copy of the register of
members of Buyer indicating that such Seller (or Shanda Media
in the case of Shanda Networking) is the record holder of such Seller’s Consideration
Shares and (ii) a share certificate for such Consideration Shares duly issued to such
Seller (or Shanda Media in the case of Shanda Networking) if such Seller so requests.



ARTICLE 3

Representations and Warranties of Sellers




Each Seller, severally and not jointly, represents and warrants to Buyer as of the date hereof
and as of the Closing Date that:



Section 3.01. Legal Status; Power. (a) If such Seller is not an individual, such Seller is a
company duly incorporated, validly existing and in good standing (if applicable) under the laws of
its incorporation and has the corporate power to enter into this Agreement and such Seller’s
Lock-Up Agreement and to perform its obligations hereunder and thereunder.



(b) If such Seller is an individual, such Seller is a citizen and resident of the PRC and has
the legal power and capacity to enter into this Agreement and such Seller’s Lock-Up Agreement and
to perform his or her obligations hereunder and thereunder.



Section 3.02. Authority. If such Seller is not an individual, the execution and delivery of
this Agreement and such Seller’s Lock-Up Agreement, the performance of the obligations hereunder
and thereunder, and the consummation of the transactions contemplated hereby and thereby, have been
duly authorized by all requisite corporate or organizational actions of such Seller and no other
corporate or organizational proceedings on the part of such Seller are necessary to authorize such
execution, delivery or performance or to consummate such transactions.



Section 3.03. Governmental Authorization. The execution, delivery and performance by such
Seller of this Agreement and such Seller’s Lock-Up Agreement and the consummation of the
transactions contemplated hereby and thereby require no action by or in respect of, or filing with,
any Governmental Authority other than the registration of the transfer of such Seller’s Sold
Interest with SAIC.



Section 3.04. Noncontravention. The execution, delivery and performance by such Seller of
this Agreement and such Seller’s Lock-Up Agreement and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) contravene, conflict with, or result in any
violation or breach of any provision of the constitutional documents of such Seller (if such Seller
is not an individual), (ii) contravene, conflict with or result in a violation or breach of any
provision of any Applicable Law, (iii) constitute a default (with or without the giving of notice
or the lapse of time or both) under, require the consent or approval of any Person under, or give rise to any right of termination,
cancellation or acceleration of any right or obligation of such Seller or to a loss of any benefit
to which he or it is entitled under any provision of any contract binding upon such Seller or any
of his or its assets or properties, or (iv) result in the creation or imposition of any Lien (or
any obligation to create any Lien) on any assets or properties of such Seller (including such
Seller’s Sold Interest).



 


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Section 3.05. Enforceability. This Agreement constitutes, and such Seller’s Lock-Up
Agreement when executed by such Seller will constitute, a legal, valid and binding agreement of
such Seller, enforceable against Seller in accordance with their respective terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws
affecting creditors’ rights generally and general principles of equity).



Section 3.06. Ownership of the Sold Interest. Such Seller is the record and beneficial owner
of such Seller’s Sold Interest, free and clear of any Lien and any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of such Sold Interest).



Section 3.07. Litigation. There is no action, suit, investigation or proceeding pending
against or, to the knowledge of such Seller, threatened against or affecting such Seller before any
Governmental Authority which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement or such Seller’s Lock-Up
Agreement.



Section 3.08. Regulation S. The Option Holder is Not a “U.S. person” (as such term is
defined in Regulation S of the 1933 Act) and is outside of the U.S.



Section 3.09. Investment Purpose. Such Seller is obtaining its Consideration Shares for
investment for its own account and not with a view to, or for sale in connection with, any
distribution thereof or of any interest therein. Such Seller (either alone or together with its
advisors) has sufficient knowledge and experience in financial and business matters so as to be
capable of evaluating the merits and risks of receiving its Consideration Shares as consideration
for the sale of its Sold Interest and is capable of bearing the economic risks of such transaction.



Section 3.10. Exempt from Registration; Restricted Securities. Such Seller understands that
its Consideration Shares will not be registered under the 1933 Act or registered or listed publicly
pursuant to any other Applicable Laws on the ground that the sale provided for in this Agreement is
exempt from registration under the 1933 Act or the registration or listing requirements of any
other applicable securities law, and that the reliance of Buyer on such exemption is predicated in
part on such Seller’s representations set forth in this Agreement. Such Seller understands that
its Consideration Shares are “restricted securities” within the meaning of Rule 144 under the 1933
Act and that such Consideration Shares are not registered or listed publicly and must be held
indefinitely unless
they are subsequently registered or listed publicly or sold pursuant to an exemption from such
registration or listing is available.


 


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Section 3.11. Finders’ Fees. There is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act on behalf of such Seller or any
other party hereto who might be entitled to any fee or commission in connection with the
transactions contemplated by this Agreement from any party other than such Seller.



ARTICLE 4

Representations and Warranties about the Company




Each Seller (other than Shanda Networking), jointly and severally, represents and warrants to
Buyer as of the date hereof and as of the Closing Date that:



Section 4.01. Corporate Existence and Power. Each of the Company and its Subsidiaries is a
limited liability company duly formed, validly existing and in good standing under the laws of the
PRC and has all corporate powers and all material governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now conducted.



Section 4.02. Corporate Authorization. The execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions contemplated hereby are within
the Company’s corporate powers and have been duly authorized by all necessary corporate action on
the part of the Company. This Agreement constitutes a valid and binding agreement of the Company
in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws affecting creditors’ rights generally and general
principles of equity).



Section 4.03. Governmental Authorization. The execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions contemplated hereby require no
action by or in respect of, or filing with, any Governmental Authority.



Section 4.04. Noncontravention. The execution, delivery and performance by the Company or
any of the Sellers of this Agreement and the consummation of the transactions contemplated hereby
do not and will not (i) violate the articles of incorporation or other constitutional documents of
the Company or any of its Subsidiaries, (ii) violate any Applicable Law, (iii) require any consent
or other action by any Person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of the Company or any of its
Subsidiaries or to a loss of any benefit to which the Company or any of its Subsidiaries is
entitled under any Contract of the
Company or any of its Subsidiaries or (iv) result in the creation or imposition of any Lien on
any asset of the Company or any of its Subsidiaries.


 


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Section 4.05. Capitalization. (a) The registered capital of the Company is RMB 10,000,000.



(b) The Company holds all of the equity interests in each of its Subsidiaries.



(c) All of the registered capital of the Company and each of its Subsidiaries has been timely
and adequately contributed in accordance with the Applicable Laws. There are no resolutions
pending to increase the registered capital of the Company or any of its Subsidiaries.



(d) All changes to the share capital (including capital increase and capital reduction) and
all changes in the shareholding (including transfers by shareholders) of the Company and each of
its Subsidiaries have been duly authorized and approved by and filed and registered with the
relevant Governmental Authorities in the PRC, and have been made in full compliance with the
Applicable Laws.



(e) Except for this Agreement, there is no agreement, arrangement or obligation of any kind
(and no authorization therefore has been given) obligating the Company or any other Person to issue
or sell, or cause to be issued or sold, any equity interests in the Company or any of its
Subsidiaries.



Section 4.06. Financial Statements. The financial statements of the Company and its
Subsidiaries provided to Buyer prior to the date hereof fairly present, in conformity with the PRC
GAAP applied on a consistent basis, the financial position of the Company and its Subsidiaries as
of the dates thereof and their consolidated results of operations and cash flows for the periods
then ended.



Section 4.07. No Material Liabilities. Other than those disclosed to the Buyer prior to the
date hereof, there are no material liabilities of the Company or any of its Subsidiaries of any
kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, and
there is no existing condition, situation or set of circumstances which would reasonably be
expected to result in such a liability.



Section 4.08. Related Party Transactions. Neither the Company nor any of its Subsidiaries is
indebted, either directly or indirectly, to any Seller (other than Shanda Networking) or any
Affiliate of any Seller (other than Shanda Networking) or any other Affiliate of the Company or any
of its Subsidiaries in any amount whatsoever. No Seller (other than Shanda Networking) nor any
Affiliate of any Seller (other than Shanda Networking), nor any other Affiliate of the Company nor
any of its Subsidiaries, is, directly or indirectly, a party to or
otherwise an interested party with respect to any contract with the Company or any of its
Subsidiaries.


 


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Section 4.09. Material Contracts. (a) The Company has delivered a true and complete copy of
all agreement, commitment, arrangement or plan that is material to the Company or any of its
Subsidiaries (collectively, the “Material Contracts”).



(b) Each Material Contract is a valid and binding agreement of the Company or a Subsidiary of
the Company, as the case may be, and is in full force and effect, and none of the Company, any of
its Subsidiaries or, to the knowledge of the Company, any other party thereto is in default or
breach in any material respect under the terms of any such Material Contract, and, to the knowledge
of the Company, no event or circumstance has occurred that, with notice or lapse of time or both,
would constitute any event of default thereunder.



Section 4.10. Litigation. Other than those disclosed to the Buyer by the date hereof, there
is no action, suit, investigation or proceeding (or any basis therefor) pending against or
affecting, or to the knowledge of the Company, threatened against, the Company or any of its
Subsidiaries or any of their respective properties before any arbitrator or any Governmental
Authority.



Section 4.11. Compliance with Laws and Court Orders. (a) Neither the Company nor any of its
Subsidiaries is in violation of, and has not violated, and to the knowledge of the Company is not
under investigation with respect to and has not been threatened to be charged with or given notice
of any violation of, any Applicable Law.



(b) Neither the Company nor any of its Subsidiaries has received written notice that it is
under investigation with respect to any violation of any Applicable Laws. Other than those
disclosed to the Buyer prior to the date hereof, there is no judgment, decree, injunction, rule or
order of any arbitrator or Governmental Authority outstanding against the Company or any of its
Subsidiaries.



(c) (i) None of the Company, any of its Subsidiaries, or any of the directors, employees or
agents of the Company or any of its Subsidiaries has made any offer, payment, promise to pay, or
authorization of the payment of any money, or offer, gift, promise to give, or authorization of the
giving of anything of value to any Government Official or political party for purposes of
influencing any act or decision of such official or party in his or its official capacity, in order
to obtain or retain business or secure any improper advantage.




(ii) No Seller (other than Shanda Networking) is a Government Official (or close
family member of a Government Official) who is in a position to award or influence
decisions favorable to the Company or any of its Subsidiaries. To the knowledge of the
Company, none of the
officers or directors of the Company or any of its Subsidiaries is a Government
Official (or close family member of a Government Official) who is in a position to award
or influence decisions favorable to the Company or any of its Subsidiaries.


 


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Section 4.12. Properties. The Company and its Subsidiaries have good and marketable title
to, or in the case of leased property and assets have valid leasehold interests in, all property
and assets (whether real, personal, tangible or intangible) currently used or held by the Company
or its Subsidiaries. None of such property or assets is subject to any Lien.



Section 4.13. Intellectual Property.



(a) The Company and each of its Subsidiaries owns, or is licensed to use or distribute, as
applicable, pursuant to a written agreement (in each case, free and clear of any Liens), all
Intellectual Property used in, distributed by the Company or any of its Subsidiaries in, or
necessary for the conduct of its business as currently conducted, and the Company has delivered to
Buyer a complete and correct list of such Intellectual Property.



(b) Other than disclosed to the Buyer prior to the date hereof, neither the Company nor any of
its Subsidiaries has infringed, misappropriated or otherwise violated the Intellectual Property of
any Person.



(c) Other than disclosed to the Buyer prior to the date hereof, the Company and its
Subsidiaries (i) are not hosting any contents on (or otherwise accessible through) their websites
that were uploaded, posted or otherwise made accessible through such websites in breach of any
Applicable Laws relating to any Intellectual Property of any Person and (ii) have taken all
measures to satisfy the safe harbor specified in the PRC IP Laws.



(d) To the knowledge of the Company, no Person has challenged, infringed, misappropriated or
otherwise violated any Intellectual Property owned by the Company or any of its Subsidiaries.



(e) Except for those that have been disclosed to Buyer prior to the date hereof, neither the
Company nor any of its Subsidiaries has received any written notice or otherwise has knowledge of
any pending or threatened claim, action, suit, order or proceeding with respect to any Intellectual
Property used or distributed by the Company or any of its Subsidiaries or alleging that any
services provided, processes used or products distributed, manufactured, used, imported, offered
for sale or sold by the Company or any of its Subsidiaries infringes, misappropriates or otherwise
violates any Intellectual Property of any Person.



(f) The consummation of the transactions contemplated by this Agreement will not alter,
encumber, impair or extinguish any Intellectual Property of the Company or any of its Subsidiaries
or impair the right of Buyer to
distribute, develop, use, sell, license or dispose of, or to bring any action for the
infringement of, any Intellectual Property owned by the Company or any of its Subsidiaries.


 


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(g) The Company and its Subsidiaries have taken reasonable steps in accordance with normal
industry practice to maintain the confidentiality of all trade secrets owned, used or held for use
by the Company or any of its Subsidiaries and no such trade secrets have been disclosed other than
to employees, representatives and agents of the Company or any of its Subsidiaries all of whom are
bound by written confidentiality agreements.



(h) The IT Assets operate and perform in a manner that permits the Company and its
Subsidiaries to conduct their respective businesses as currently conducted and to the knowledge of
the Company, no Person has gained unauthorized access to the IT Assets.



(i) The Company and its Subsidiaries have implemented reasonable backup and disaster recovery
technology consistent with industry practices.



(j) All Software owned by the Company or any of its Subsidiaries was (A) developed by
employees of the Company or its Subsidiaries working within the scope of their employment, (B)
developed by officers, directors, agents, consultants, contractors, subcontractors or others who
have executed appropriate instruments of assignment or who have agreed in writing to effect such
assignment, which ultimately runs in favor of the Company or one of its Subsidiaries as assignee,
which assignments have conveyed or will convey to the Company or such Subsidiary ownership of all
of such person’s rights in the Intellectual Property relating to such developments, or (C) acquired
in connection with acquisitions in which the Company or one of its Subsidiaries obtained
appropriate representations, warranties or indemnities from the transferring party relating to the
title to such Intellectual Property.



(k) There are no defects in any Software distributed by the Company or any of its Subsidiaries
that would prevent such Software from performing in accordance with its user specifications and
there are no viruses, worms, Trojan horses or similar programs in any such Software.



(l) None of the Software distributed by the Company or any of its Subsidiaries contains any
software code that is licensed under any terms or conditions that require that any software be (A)
made available or distributed in source code form, (B) licensed for the purpose of making
derivative works, (C) licensed under terms that allow reverse engineering, reverse assembly or
disassembly of any kind or (D) redistributable at no charge.


 


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Section 4.14. Licenses and Permits. Each license, franchise, permit, certificate, approval
or other similar authorization affecting, or relating in any way to, the assets or business of the
Company and its Subsidiaries (the
“Permits”)is valid and in full force and effect in all material respects. Neither the Company
nor any of its Subsidiaries is in material default under, and no condition exists that with notice
or lapse of time or both would constitute a material default under, the Permits. None of the
Permits will be terminated or impaired or become terminable, in whole or in part, as a result of
the transactions contemplated hereby.



Section 4.15. Selling Documents. None of the documents or information delivered to Buyer in
connection with the transactions contemplated by this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the statements contained
therein not misleading.



Section 4.16. Finders’ Fees. There is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act on behalf of the Company or any of
its Subsidiaries who might be entitled to any fee or commission in connection with the transactions
contemplated by this Agreement.



Section 4.17. Taxes. (a) All Tax Returns required by Applicable Law to be filed with any
Taxing Authority by, or on behalf of, the Company or any of its Subsidiaries have been in
accordance with all Applicable Law, and all filed Tax Returns are true and complete in all material
respects.



(b) The Company and each of its Subsidiaries has paid (or has had paid on its behalf) or has
withheld and remitted to the appropriate Taxing Authority all Taxes due and payable, or, where
payment is not yet due, has established (or has had established on its behalf and for its sole
benefit and recourse) in accordance with PRC GAAP an adequate accrual for all Taxes through the end
of the last period for which the Company and its Subsidiaries ordinarily record items on their
respective books.



(c) The income and franchise Tax Returns of the Company and its Subsidiaries through the Tax
year ended December 31, 2010 have been examined and closed or are Tax Returns with respect to which
the applicable period for assessment under Applicable Law, after giving effect to extensions or
waivers, has expired.



(d) There is no claim, audit, action, suit, proceeding or investigation now pending or, to the
knowledge of the Company, threatened against or with respect to the Company or any of its
Subsidiaries in respect of any Tax or Tax asset.



(e) No assessment of Tax has been proposed in writing against the Company or any of its
Subsidiaries or any of their respective assets and properties and to the knowledge of the Company,
there are no grounds for any such assessment. There are no outstanding agreements, waivers or
arrangements
extending the statutory period of limitation applicable to any claim for, or the period for
the collection or assessment of, Taxes due from or with respect to the Company or any of its
Subsidiaries for any taxable period.


 


13









 





(f) Neither the Company nor any of its Subsidiaries has participated in any arrangement
whereby any Tax liability or any Tax asset of the Company or any of its Subsidiaries was determined
or taken into account for Tax purposes with reference to or in conjunction with any Tax liability
or any Tax asset of any other person.



(g) “Tax” means (i) any tax, governmental fee or other like assessment or charge of any kind
whatsoever (including withholding on amounts paid to or by any Person), together with any interest,
penalty, addition to tax or additional amount imposed by any Governmental Authority (a “Taxing
Authority”) responsible for the imposition of any such tax (domestic or foreign), and any liability
for any of the foregoing as transferee, (ii) in the case of the Company or any of its Subsidiaries,
liability for the payment of any amount of the type described in clause (i) as a result of being or
having been before the Closing Date a member of an affiliated, consolidated, combined or unitary
group, or a party to any agreement or arrangement, as a result of which liability of the Company or
any of its Subsidiaries to a Taxing Authority is determined or taken into account with reference to
the activities of any other Person, and (iii) liability of the Company or any of its Subsidiaries
for the payment of any amount with respect to the payment of any amount imposed on any Person of
the type described in (i) or (ii) as a result of any existing express or implied agreement or
arrangement (including an indemnification agreement or arrangement). “Tax Return” means any
report, return, document, declaration or other information or filing required to be supplied to any
Taxing Authority with respect to Taxes, including information returns, any documents with respect
to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the
extension of time in which to file any such report, return, document, declaration or other
information, and any election with respect to Taxes.



Section 4.18. Employees; Labor Relations.



(a) None of the employees of the Company and its Subsidiaries has indicated to the Company or
such Subsidiary that he or she intends to resign or retire as a result of the transactions
contemplated by this Agreement or otherwise within one year after the Closing Date.



(b) There are no disputes pending or, to the knowledge of the Company, threatened in writing
between the Company or any of its Subsidiaries and any trade union or other representatives of its
employees. Neither the Company nor any of its Subsidiaries has entered into any collective
bargaining agreement with any labor union.


 


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(c) Each of the Company and its Subsidiaries (i) is in compliance with all Applicable Laws in
all material respects relating to their respective employees, consultants, dispatched,
subcontracted or outsourced workers and independent contractors, including all such Applicable
Laws, Contracts, policies or plans relating to wages, hours, collective bargaining, compensation,
benefits, terms and conditions of employment, termination of employment, employment discrimination,
immigration, disability, civil rights, occupational safety and health, workers’ compensation, pay
equity, collection and payment of withholding and/or social contribution taxes and similar Taxes,
national pension, national medical insurance, worker’s compensation insurance, unemployment
insurance and other mandatory social security matters, and (ii) is not engaged, in any material
respect, in any unfair labor practice or discriminatory employment practice that is prohibited by
Applicable Laws.



(d) Each of the Company and its Subsidiaries has complied with all Applicable Laws relating to
social insurance and other benefits, including pension, medical insurance, work-related injury
insurance, birth and nursery insurance and unemployment insurance (collectively, the “Social
Insurance”). All contributions or payments required to be made or paid by each such Subsidiary or
any employees of such Subsidiary to the relevant Governmental Authority with respect to any Social
Insurance have been made or fully deducted, as applicable, and paid to on or before their due
dates.



(e) No employee or former employee of the Company or any of its Subsidiaries will become
entitled to any bonus, retirement, severance, job security or similar benefit or enhanced such
benefit (including acceleration of vesting or exercise of an incentive award) as a result of the
transactions contemplated hereby.



(f) Neither the Company nor any of its Subsidiaries has any material liabilities in respect of
actual or contingent employment termination payments to employees (including any severance
payments, any cash-out or acceleration of options and restricted stock and any “gross-up” payments
with respect to any of the foregoing).



ARTICLE 5

Representations and Warranties of Buyer




Buyer represents and warrants to each Seller as of the date hereof and as of the Closing Date
that:



Section 5.01. Corporate Existence and Power. Buyer is a company duly incorporated, validly
existing and in good standing under the laws of the Cayman Islands and has all corporate powers and
all material governmental licenses, authorizations, permits, consents and approvals required to
carry on its business as now conducted.


 


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Section 5.02. Corporate Authorization. The execution, delivery and performance by Buyer of
this Agreement and the consummation of the transactions contemplated hereby are within the
corporate powers of Buyer and have been duly authorized by all necessary corporate action on the
part of Buyer (other than the Buyer Shareholder Approval). This Agreement constitutes a legal,
valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws affecting creditors’ rights generally and general principles of equity).



Section 5.03. Governmental Authorization. The execution, delivery and performance by Buyer
of this Agreement and the consummation of the transactions contemplated hereby require no material
action by or in respect of, or material filing with, any Governmental Authority other than the
registration of the transfer of such Seller’s Sold Interest with SAIC.



Section 5.04. Noncontravention. The execution, delivery and performance by Buyer of this
Agreement and the consummation of the transactions contemplated hereby do not and will not (i)
contravene, conflict with, or result in any violation or breach of any provision of the memorandum
and articles of incorporation of Buyer, (ii) contravene, conflict with or result in a violation or
breach of any provision of any Applicable Law or (iii) require the consent or waiver of any third
party.



Section 5.05. Litigation. There is no action, suit, investigation or proceeding pending
against or, to the knowledge of Buyer, threatened against or affecting Buyer before any
Governmental Authority which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.



Section 5.06. Issuance of Buyer Shares. Such Seller’s Consideration Shares, when issued
pursuant hereto, shall be fully paid and nonassessable.



ARTICLE 6

Covenants 




Section 6.01. Best Efforts; Further Assurances. (a) Subject to the terms and conditions of
this Agreement, each Seller and Buyer will use their best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary or desirable under Applicable Laws
to consummate the transactions contemplated by this Agreement and such Seller’s Lock-Up Agreement,
including (i) preparing and filing as promptly as practicable with any Governmental Authority or
other third party all documentation to effect all necessary filings, notices, statements,
registrations, submissions of information, applications and other documents and (ii) obtaining and
maintaining all approvals, consents, registrations, permits, authorizations and other confirmations
required to be
obtained from any Governmental Authority or other third party that are necessary, proper or
advisable to consummate the transactions contemplated by this Agreement and such Seller’s Lock-Up
Agreement.


 


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(b) Each Seller agrees to execute and deliver, and cause to be executed and delivered, such
agreements, instruments of transfer, assignments and other good and sufficient instruments of
conveyance, transfer and assignment as may be necessary, desirable or appropriate to consummate or
implement expeditiously the transactions contemplated by this Agreement and to vest in Buyer (or
the Buyer Designee) all right, title and interest in such Seller’s Sold Interest.



Section 6.02. Certain Filings. Sellers and Buyer shall cooperate with one another (i) in
determining whether any action by or in respect of, or filing with, any Governmental Authority is
required, or any actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the transactions contemplated by
this Agreement and (ii) in taking such actions or making any such filings, furnishing information
required in connection therewith and seeking timely to obtain any such actions, consents, approvals
or waivers.



Section 6.03. Public Announcements. The parties agree to consult with each other before
issuing any press release or making any public statement with respect to this Agreement or the
transactions contemplated hereby and, except for any press releases and public statements the
making of which may be required by applicable Laws or any listing agreement with any securities
exchange, will not issue any such press release or make any such public statement prior to such
consultation.



Section 6.04. Conduct of the Company. (a) From the date hereof until the Closing Date,
except as permitted by any other provision of this Agreement, each Seller shall use commercially
reasonable efforts in its capacity as a shareholder of the Company and through persons designated
by such Seller to the board of directors of the Company to instruct the Company to, and to cause
each Subsidiary of the Company to, conduct its business in the ordinary course consistent with past
practice and use its commercially reasonable best efforts to (i) preserve intact its present
business organization, (ii) maintain in effect all of its foreign, federal, state and local
licenses, permits, consents, franchises, approvals and authorizations, (iii) keep available the
services of its directors, officers and key employees and (iv) maintain satisfactory relationships
with its customers, lenders, suppliers and others having material business relationships with it.



(b) Without limiting the generality of the foregoing, except as expressly contemplated by this
Agreement, from the date hereof until the Closing Date, the Sellers shall not permit the Company
and its Subsidiaries to, and shall cause the Company and its Subsidiaries not to, do any of the
following without the prior written consent of Buyer:


 


17









 






(i) amend the constitutional documents (whether by merger, consolidation or
otherwise) of the Company;




(ii) declare, set aside or pay any dividend or other distribution (whether in cash or
property or any combination thereof) in respect of the equity interest in the Company, or
redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise
acquire any equity interest in the Company;




(iii) issue, deliver or sell, or authorize the issuance, delivery or sale of, any
 shares of any equity interest in the Company or any of its Subsidiaries;




(iv) incur any capital expenditures or any obligations or liabilities in respect
thereof, except for any capital expenditures not to exceed RMB$50,000 individually or
RMB$100,000 in the aggregate;




(v) acquire (by merger, consolidation, acquisition of stock or assets or otherwise),
directly or indirectly, any assets, securities, properties, interests or businesses, other
than supplies in the ordinary course of business in a manner that is consistent with past
practice;




(vi) sell, lease or otherwise transfer, or create or incur any Lien on, any of the
assets, securities, properties, interests or businesses of the Company or any of its
Subsidiaries;




(vii) make any loans, advances or capital contributions to, or investments in, any
other Person;




(viii) create, incur, assume, suffer to exist or otherwise be liable with respect to
any indebtedness for borrowed money or guarantees thereof;




(ix) (A) enter into any agreement or arrangement that limits or otherwise restricts
in any material respect the Company or any of its Subsidiaries or that would, after the
Closing Date, limit or restrict in any material respect the Company, Buyer or any of their
respective affiliates, from engaging or competing in any line of business, in any location
or with any Person or (B) enter into, amend or modify in any material respect or terminate
any material contract or otherwise waive, release or assign any material rights, claims or
benefits of the Company or any of its Subsidiaries;


 


18









 






(x) (A) grant or increase any severance or termination pay to (or amend any existing
arrangement with) any director, officer or employee of the Company or any of its
Subsidiaries, (B) increase benefits payable under any existing severance or termination
pay policies or
employment agreements, (C) enter into any employment, deferred compensation or other
similar agreement (or amend any such existing agreement) with any director, officer or
employee of the Company or any of its Subsidiaries, (D) establish, adopt or amend (except
as required by Applicable Law) any bonus, profit-sharing, pension, retirement, deferred
compensation, compensation, stock option, restricted stock or other benefit plan or
arrangement covering any director, officer or employee of the Company or any of its
Subsidiaries or (E) increase compensation, bonus or other benefits payable to any
director, officer or employee of the Company or any of its Subsidiaries;




(xi) settle, or offer or propose to settle, (A) any material litigation,
investigation, arbitration, proceeding or other claim involving or against the Company or
any of its Subsidiaries, (B) any shareholder litigation or dispute against the Company or
any of its Subsidiaries or any of their respective officers or directors or (C) any
litigation, arbitration, proceeding or dispute that relates to the transactions
contemplated hereby; or




(xii) agree, resolve or commit to do any of the foregoing.



Section 6.05. Lock-up Agreements. (a) Each of the Sellers (other than Shanda Networking)
shall execute and deliver to Buyer a Lock-Up Agreement under which such Seller (or Shanda Media, as
applicable) will agree not to transfer or dispose of any of its Consideration Shares acquired
pursuant to this Agreement by the second anniversary of the Closing Date without the prior written
consent of Buyer.



(b) Shanda Networking shall cause Shanda Media to execute and deliver to Buyer a Lock-Up
Agreement under which Shanda Media will agree not to transfer or dispose of any of Shanda
Networking’s Consideration Shares acquired pursuant to this Agreement within 181 days following the
Closing Date without the prior written consent of Buyer.



Section 6.06. Noncompetition. (a) Each Seller (other than Shanda Networking) agrees that for
a period of three full years after the Closing Date, neither it nor any of its Affiliates shall:




(i) engage, either directly or indirectly, as a principal or for its own account or
solely or jointly with others, or as shareholders in any company, in any business that
competes with the business of Buyer and its Subsidiaries as it exists on the Closing Date;
or




(ii) employ or solicit, or receive or accept the performance of services by any
current employee of the Company or any of its Subsidiaries.


 


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Section 6.07. Employment Agreement. Each Seller (other than Shanda Networking and Mr. Wu)
agrees that he will enter into an employment agreement with Buyer prior to the Closing in a form
satisfactory to Buyer, which will provide for a service term of two years from the Closing Date
(collectively, the “Employment Agreements”).



Section 6.08. Resignation. Mr. Yang agrees that (x) prior to the Closing, he will resign
from all companies (other than the Company and its Subsidiaries) to which he currently provides any
service, by which he currently is employed or in which he currently holds any position as an
employee and (y) after the Closing, he will devote his time and efforts to work for Buyer; provided
that Mr. Yang may continue to hold his position as directors of companies other than the Company
and its Subsidiaries if he currently holds such position.



Section 6.09. Domain Name Transfer. Mr. Yang agrees that, prior to the Closing, he will
transfer the domain name www.pipi.com to a company designated by Buyer at a price of RMB 1,000,000
and enter into all agreements and instruments and obtain and make all government consents and
filings to effect such transfer by the Closing.



Section 6.10. ADS Facility. (a) Each Seller agrees that such Seller shall not, prior to the
day on which all of such Seller’s Consideration Shares have become freely transferrable under the
1933 Act and under such Seller’s Lock-Up Agreement, deposit any of its Consideration Shares into
the unrestricted ADS facility of Buyer with the depositary of the ADSs nor request the issuance of
by such depositary of any unrestricted ADSs in respect of any such Consideration Shares.



(b) Each Seller agrees that when ADSs are issued to such Seller with respect to the
Consideration Shares of such Seller, the number of such ADSs shall be rounded down to a whole
number such that after such issuance such Seller shall not hold any Buyer Shares not represented in
ADSs.



Section 6.11. Waiver of Existing Rights. Each Seller hereby waives its right of first
refusal, right of co-sale and right of first offer and similar rights with respect to the sale of
any equity interest in the Company by each other Seller under this Agreement, regardless where such
rights are set forth.



Section 6.12. SAFE Registration. Each Seller will make reasonable endeavors to complete all
necessary foreign exchange registrations with the State Administration of Foreign Exchange of the
PRC required by the Applicable Laws for the holding of such Seller’s Consideration Shares as soon
as practicable following the Closing.



Section 6.13. Conduct of Buyer. From the date hereof until the Closing Date, Buyer shall
conduct its business in the ordinary course consistent with past
practice. Without limiting the generality of the foregoing, from the date hereof until the
Closing Date Buyer shall not:


 


20









 





(a) amend its memorandum and articles of association (whether by merger, consolidation or
otherwise);



(b) (i) split, combine or reclassify any shares of its capital stock or (ii) declare, set
aside or pay any dividend or other distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock;



(c) merge with or into any Person; or



(d) agree, resolve or commit to do any of the foregoing.



Section 6.14. Buyer Shareholder Meeting. Buyer shall use its commercially reasonable best
efforts to take all actions in accordance with law, the organizational documents of Buyer and the
rules of NASDAQ to promptly and duly call, give notice of, convene and hold as promptly as
practicable, a meeting of its shareholders for the purpose of approving the issuance of Buyer
Shares pursuant to this Agreement.



Section 6.15. NASDAQ Listing. Buyer shall use its commercially reasonable efforts to cause
the Buyer Shares to be authorized for listing on NASDAQ, subject to official notice of issuance, as
soon as reasonably practicable.



Section 6.16. Confidentiality. (a) Each party will hold, and cause its respective officers,
directors, employees, accountants, counsel, consultants, advisors and agents to hold, in
confidence, unless compelled to disclose by judicial or administrative process or by other
requirements of Applicable Law, the existence of and parties to this Agreement and the terms of and
the transactions contemplated by this Agreement.



(b) After the Closing, each Seller and its Affiliates will hold, and will use their
commercially reasonable best efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in confidence, unless compelled to
disclose by judicial or administrative process or by other requirements of law, all confidential
documents and information concerning the Company and its Subsidiaries, except to the extent that
such information can be shown to have been (i) previously known on a nonconfidential basis by such
Seller, (ii) in the public domain through no fault of such Seller or its Affiliates or (iii) later
lawfully acquired by such Seller from sources other than those related to its prior ownership of
the Company and its Subsidiaries. The obligation of each Seller and its Affiliates to hold any
such information in confidence shall be satisfied if they exercise the same care with respect to
such information as they would take to preserve the confidentiality of their own similar
information.


 


21









 





Section 6.17. Board Seat. Promptly after the Closing Date, Buyer shall increase the size of
the Board of Directors of Buyer from nine to 11 and cause an individual to be designated by the
Company on the Closing Date to be appointed as a member of the Board of Directors of Buyer whose
term shall be one year from the date of appointment (the “Initial Company Designee”). So long as
the Sellers (excluding Shanda Networking) hold at least 9% of the outstanding Buyer Shares, Mr.
Yang will have the right to designate a member of the Board of Directors of Buyer after the Initial
Company Designee has served his term.



ARTICLE 7

Conditions to Closing




Section 7.01. Conditions to Obligations of Buyer and Sellers. The obligations of Buyer and
Sellers to consummate the transactions contemplated hereby at the Closing are subject to the
satisfaction of the following conditions:



(a) All actions by or in respect of or filings with any Governmental Authority required to
permit the consummation of the Closing shall have been taken, made or obtained.



(b) No Applicable Law shall prohibit the consummation of the Closing.



(c) The shareholders of Buyer shall have approved the issuance of the Buyer Shares to Sellers
pursuant to Article 2.



Section 7.02. Conditions to Obligations of Buyer. The obligations of Buyer to consummate the
transactions contemplated hereby at the Closing are subject to the satisfaction of the following
conditions:



(a) (i) Each Seller shall have performed all of its or his obligations hereunder required to
be performed by it or him/her on or prior to the Closing Date, (ii) the representations and
warranties of each Seller contained in this Agreement and in any certificate or other writing
delivered by the Sellers pursuant hereto shall be true in all material respects at and as of the
Closing Date as if made at and as of such time, and (iii) Buyer shall have received a certificate
signed by such Seller (if an individual) or a director of such Seller (if not an individual) to the
foregoing effect.



(b) Buyer shall have received the resignation letters of all directors of the Company.



(c) Each of the Sellers (other than Shanda Networking) and Shanda Media shall have executed
and delivered to Buyer such Seller’s Lock-Up Agreement and such agreement shall remain in full
force and effect.


 


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(d) The Sellers (other than Shanda Networking and Mr. Wu) shall have executed and delivered to
Buyer the Employment Agreements.



(e) Mr. Yang shall have transferred the domain name www.pipi.com to a company designated by
Buyer at a price of RMB 1,000,000.



(f) Mr. Yang shall have resigned from all companies (other than the Company and its
Subsidiaries) to which he currently provides any service, by which he currently is employed or in
which he currently holds any position as an employee (other than as a director).



Section 7.03. Conditions to Obligations of Sellers. The obligations of each Seller to
consummate the transactions contemplated hereby at the Closing are subject to the satisfaction of
the following conditions:



(a) (i) Buyer shall have performed all of its obligations hereunder required to be performed
by it at or prior to the Closing Date, (ii) the representations and warranties of Buyer contained
in this Agreement and in any certificate or other writing delivered by Buyer pursuant hereto shall
be true in all material respects at and as of the Closing Date as if made at and as of such date
and (iii) such Seller shall have received a certificate signed by the Chief Executive Officer of
Buyer to the foregoing effect.



ARTICLE 8

Termination 




Section 8.01. Grounds for Termination. This Agreement may be terminated at any time prior to
the Closing:




(a) by mutual written agreement of the Company and Buyer;




(b) by either the Company or Buyer if the Closing shall not have been consummated on
or before June 30, 2011 (the “Drop Dead Date”); or




(c) by either the Company or Buyer if there shall be any Applicable Law that makes
consummation of the transactions contemplated hereby illegal or otherwise prohibited or if
consummation of the transactions contemplated hereby would violate any nonappealable final
order, decree or judgment of any Governmental Authority having competent jurisdiction.



The party desiring to terminate this Agreement pursuant to clauses 8.01(b) or 8.01(c) shall give
notice of such termination to the other party.


 


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Section 8.02. Effect of Termination. If this Agreement is terminated as permitted by
Section 9.01, such termination shall be without liability of either party (or any stockholder,
director, officer, employee, agent, consultant or representative of such party) to the other party
to this Agreement; provided that if such termination shall result from the (i) willful failure of
either party to fulfill a condition to the performance of the obligations of the other party, (ii)
failure to perform a covenant of this Agreement or (iii) breach by either party hereto of any
representation or warranty or agreement contained herein, such party shall be fully liable for any
and all Damages incurred or suffered by the other party as a result of such failure or breach. The
provisions of Sections 6.03, 6.16(a), 9.03, 9.05 and 9.08 shall survive any termination hereof
pursuant to Section 9.01.



ARTICLE 9

Miscellaneous




Section 9.01. Notices. Any notice, instruction, direction or demand under the terms of this
Agreement required to be in writing shall be duly given upon delivery, if delivered by hand,
facsimile transmission, or mail, to the following addresses:



If to any Seller, to the address of such Seller set forth opposite the name of such Seller on
Schedule I.



If to the Company to:


Hangzhou Soushi Networking Co., Ltd.

Room 5B, Building B, Paradise Software Park,

No. 3 Xidoumen Road, Hangzhou 310012,

the People’s Republic of China

Attn: Lianghai Yang

Facsimile: (86 0571) 88935755




If to Buyer to:


Ku6 Media Co., Ltd.

Building 6, Zhengtongchuangyi Centre

Beijing 100020, the People’s Republic of China

Attn: Xiaomei Pang

Facsimile: (86 10) 5758-6898




or to such other addresses or telecopy numbers as may be specified by like notice to the other
party. All such notices, requests and other communications shall be deemed given, (a) when
delivered in person or by courier or a courier services, (b) if sent by facsimile transmission
(receipt confirmed) on a Business Day prior to 5
p.m. in the place of receipt, on the date of transmission (or, if sent after 5 p.m., on the
following Business Day) or (c) if mailed by certified mail (return receipt requested), on the date
specified on the return receipt.


 


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Section 9.02. Amendments; No Waivers. (a) Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by Buyer and each Seller, or in the case of a waiver, by the party against whom the
waiver is to be effective.



(b) No failure or delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.



Section 9.03. Expenses. Except as otherwise provided herein, all costs and expenses incurred
in connection with this Agreement shall be paid by the party incurring such cost or expense.



Section 9.04. Successors and Assigns; Assignment. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided that neither party may assign, delegate or otherwise transfer any of
its rights or obligations under this Agreement without the consent of the other parties hereto. If
any party or any of its successors or permitted assigns (i) shall consolidate with or merge into
any other Person and shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) shall transfer all or substantially all of its properties and
assets to any Person, then, and in each such case, proper provisions shall be made so that the
successors and assigns of such party shall assume all of the obligations of such party under the
Agreement.



Section 9.05. Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of New York, without regard to the conflicts of laws rules
thereof.



Section 9.06. Counterparts; Effectiveness; Third-Party Beneficiaries. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received a counterpart hereof signed by the other party
hereto. Until and unless each party has received a counterpart hereof signed by the other party
hereto, this Agreement shall have no effect and no party shall have any right or obligation
hereunder (whether by virtue of any other oral or written agreement or other communication).
Neither this Agreement nor any provision hereof is intended to confer any rights, benefits,
remedies, obligations, or liabilities hereunder upon any Person other than the parties hereto and
their respective successors and permitted assigns.


 


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Section 9.07. Entire Agreement. This Agreement and the Lock-Up Agreements of the Sellers
constitute the entire understanding of the parties with respect to the subject matter hereof and
thereof and supersedes all prior agreements, understandings and negotiations, both written and
oral, between the parties with respect to the subject matter of this Agreement.



Section 9.08. Jurisdiction. Any dispute arising out of or in connection with this Agreement
shall be settled by arbitration in Hong Kong under the Hong Kong International Arbitration Centre
Administered Arbitration Rules in force when the Notice of Arbitration is submitted in accordance
with these Rules. The dispute shall be resolved by one arbitrator appointed by the parties. If
the parties cannot agree on one arbitrator, the dispute shall be resolved by three arbitrators, one
appointed by Seller, one appointed by Buyer and the third appointed by the first two arbitrators.
The arbitration proceedings shall be conducted in English. Any award is final and may be enforced
in any court of competent jurisdiction. The award shall apportion the costs of arbitration. The
parties shall duly and punctually perform their obligations hereunder pending issuance of the
arbitral award.



Section 9.09. Termination. This Agreement may be terminated at any time prior to the Closing
by mutual written agreement of Buyer, on the one side, and the Sellers collectively, on the other
side. In the event this Agreement is terminated pursuant to the preceding sentence, none of the
parties hereto nor any of its directors or officers (if applicable) shall have any liability or
further obligation to the other party.



Section 9.10. Severability. If any one or more of the provisions contained in this Agreement
should be declared invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not in any way be
affected or impaired thereby so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any party. Upon such a
declaration, the parties shall modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner so that the transactions contemplated hereby
are consummated as originally contemplated to the fullest extent possible.



Section 9.11. Captions. The captions herein are included for convenience of reference only
and shall be ignored in the construction or interpretation hereof.


 


26









 





Section 9.12. Specific Performance. Each party to this Agreement acknowledges and agrees
that damages for a breach or threatened breach of any of the provisions of this Agreement would be
inadequate and irreparable harm would occur. In recognition of this fact, each party agrees that,
if there is a breach or threatened breach, in addition to any damages, the other non-breaching
party to this Agreement, without posting any bond, shall be entitled to seek and obtain equitable
relief in the form of specific performance, temporary restraining order,
temporary or permanent injunction, attachment, or any other equitable remedy which may then be
available to obligate the breaching party (i) to perform its obligations under this Agreement or
(ii) if the breaching party is unable, for whatever reason, to perform those obligations, to take
any other actions as are necessary, advisable or appropriate to give the other party to this
Agreement the economic effect which comes as close as possible to the performance of those
obligations (including, but not limited to, transferring, or granting liens on, the assets of the
breaching party to secure the performance by the breaching party of those obligations).



[Remainder of page intentionally left blank]



 


27









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.



	 	 	 	 	 
	 	KU6 MEDIA CO., LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 
	 	SHANGHAI SHANDA NETWORKING CO., LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 
	 	 	 
	 	  	 	 
	 	 	LIANGHAI YANG 	 
	 	 	 	 
	 
	 	 	 
	 	  	 	 
	 	 	BIN WU 	 
	 	 	 	 
	 
	 	 	 
	 	  	 	 
	 	 	CHANGZHUANG YANG 	 
	 	 	 	 
	 
	 	 	 
	 	  	 	 
	 	 	ZHONGXUE HUANG 	 
	 	 	 	 
	 
	 	 	 
	 	  	 	 
	 	 	YONG CHEN 	 
	 	 	 	 
	 
	 	 	 
	 	  	 	 
	 	 	KUN ZHANG 	 
	 	 	 	 



 


 









 






SCHEDULE I




List of Sellers




	 	 	 	 	 	 	 	 	 
	 	 	 	 	PERCENTAGE	 	 	 
	 	 	 	 	OF EQUITY	 	 	 
	 	 	CITIZENSHIP/	 	INTEREST IN	 	 	 
	NAME	 	JURISIDCTION	 	COMPANY	 	 	ADDRESS
	Shanghai Shanda
Networking Co.,
Ltd.

	 	PRC
	 	 	32	%	 	Room 5B, Building B, Paradise
Software Park,
No. 3 Xidoumen Road, Hangzhou
310012,
the People’s Republic of China
	 
	 	 	 	 	 	 	 	 
	Lianghai Yang

	 	PRC, ID Number:

350322197601131556
	 	 	37.4	%	 	Room 5B, Building B, Paradise
Software Park,
No. 3 Xidoumen Road, Hangzhou
310012,
the People’s Republic of China
	 
	 	 	 	 	 	 	 	 
	Bin Wu

	 	PRC, ID Number:

330724197310070053
	 	 	21.76	%	 	Room 5B, Building B, Paradise
Software Park,
No. 3 Xidoumen Road, Hangzhou
310012,
the People’s Republic of China
	 
	 	 	 	 	 	 	 	 
	Changzhuang Yang

	 	PRC, ID Number:

452421197511151013
	 	 	3.54	%	 	Room 5B, Building B, Paradise
Software Park,
No. 3 Xidoumen Road, Hangzhou
310012,
the People’s Republic of China
	 
	 	 	 	 	 	 	 	 
	Zhongxue Huang

	 	PRC, ID Number:

42212319750826291X
	 	 	2.72	%	 	Room 5B, Building B, Paradise
Software Park,
No. 3 Xidoumen Road, Hangzhou
310012,
the People’s Republic of China
	 
	 	 	 	 	 	 	 	 
	Yong Chen

	 	PRC, ID Number:

332621197411070156
	 	 	1.90	%	 	Room 5B, Building B, Paradise
Software Park,
No. 3 Xidoumen Road, Hangzhou
310012,
the People’s Republic of China
	 
	 	 	 	 	 	 	 	 
	Kun Zhang

	 	PRC, ID Number:

340321197810010816
	 	 	0.68	%	 	Room 5B, Building B, Paradise
Software Park,
No. 3 Xidoumen Road, Hangzhou
310012,
the People’s Republic of China
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	Total

	 	 	 	 	100	%	 	 
	 	 	 	 	 	 	 	 







 


 









 







SCHEDULE II




Consideration Shares




	 	   	 	 	 
	NAME OF SELLERS	 	NUMBER OF CONSIDERATION SHARES	 
	Shanghai Shanda Networking Co., Ltd.
	 	 	707,876,562	 
	Lianghai Yang
	 	 	827,330,732	 
	Bin Wu
	 	 	481,356,062	 
	Changzhuang Yang
	 	 	78,308,845	 
	Zhongxue Huang
	 	 	60,169,508	 
	Yong Chen
	 	 	42,030,171	 
	Kun Zhang
	 	 	15,042,377	 
	 	 	 	 
	 
	Total
	 	 	2,212,114,257	 
	 	 	 	 
	 







 


 









 







EXHIBIT A




FORM OF LOCK-UP AGREEMENT




                     __, 2011




Ku6 Media Co., Ltd.

Building 6, Zhengtongchuangyi Centre

Beijing 100020, People’s Republic of China

Attention: Pang Xiaomei and Christina Low F.S.




Re: Ku6 Media Co., Ltd. — Lock-up Agreement




Ladies and Gentlemen:



The undersigned understands that Ku6 Media Co., Ltd. (“Buyer”) has entered into an Equity
Purchase Agreement (the “EPA”) with the Sellers (as defined in the EPA) including the undersigned
dated April 20, 2011, pursuant to which Buyer will issue to the undersigned [•] ordinary shares,
par value US$0.00005 per share, of Buyer (the “Subject Shares”) as consideration for the sale of
[•]% of the equity interest in Hangzhou Soushi Networking Co., Ltd. () held by
the undersigned to Buyer, at the closing of the transactions contemplated by the EPA.



As a condition and inducement to Buyer’s willingness to consummate the transactions
contemplated by the EPA, the undersigned hereby agrees that, without the prior written consent of
Buyer, it will not, during the period commencing on the Closing Date (as defined in the EPA) and
ending on the [second anniversary of the Closing Date]1[182nd day after the
Closing Date]2 (the “Lock-up Period”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any Subject Share or any securities convertible into or exercisable or exchangeable for the Subject
Shares or any interest in the foregoing or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of any
Subject Share, whether or not represented in American Depositary Shares, whether now owned or
hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules and regulations of the
Securities and Exchange Commission of the United States of America, and whether any such
transaction described in
clause (1) or (2) above is to be settled by delivery of Subject Shares or other securities, in
cash or otherwise.


 





	 	 	 
	1	 	Include for each Seller other than Shanda Networking
	 
	2	 	Include for Shanda Media only



 


 









 









Notwithstanding the foregoing, the undersigned may transfer some or all of the Subject Shares
held by the undersigned to any Person [which is 100% owned by the undersigned]3 [which
is an affiliate of the undersigned]4 if such Person will execute and deliver to Buyer
simultaneously with such transfer a Lock-Up Agreement substantially similar to this Lock-Up
Agreement.



The undersigned understands that Buyer is relying upon this Lock-up Agreement in proceeding
toward consummation of the transactions contemplated by the EPA. The undersigned further
understands that this Lock-up Agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns.



This Lock-up Agreement shall terminate upon the expiration of the Lock-up Period.



	 	 	 	 	 
	 	KU6 MEDIA CO., LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Name of Seller]

 	 
	 	 	 
	 	 	 
	 	 	 
	 


 





	 	 	 
	3	 	Include for each Seller other than Shanda Networking
	 
	4	 	Include for Shanda Media only