AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
AMENDMENT
TO
This Amendment (the “Amendment”) to the
Agreement (as defined below) is made as of this 26th day of February, 2010, by
and among SinoHub, Inc., a Delaware corporation (the “Company”) and
the parties listed on Schedule 1
hereto (each a “Investor” and collectively, the “Investors”). Capitalized
terms used herein, unless otherwise defined herein, shall have the meanings
ascribed to them in that certain Securities Purchase Agreement, dated February
24, 2010, by and among the Company and the Investors (the “Agreement”).
WHEREAS, pursuant to the terms
of the Agreement, the Investors have agreed to purchase shares of Common Stock
of the Company (“Shares”) and warrants
to purchase Shares (“Warrants”) for an
aggregate purchase price of $4,100,001;
WHEREAS, the Company has
received indications of interest from additional prospective investors (the
“New
Investors”) to purchase additional Shares (the “Additional Shares”)
and additional Warrants (the “Additional Warrants”)
on the terms set forth in the Agreement;
WHEREAS, the Company has
authorized the issuance and sale to the New Investors of Additional Shares and
Additional Warrants for an aggregate purchase price of up to
$1,399,999;
WHEREAS, the Company and the
Investors desire to amend the Agreement as specified in this Amendment to permit
the sale of the Additional Shares and Additional Warrants as set forth
herein;
WHEREAS, the Company and the
Investors desire to amend the Agreement as specified in this Amendment to
further provide for the rights of the respective parties
thereunder;
WHEREAS, pursuant to
Section 6.4 of the Agreement, an amendment to the Agreement may be made
with the written consent of the Company and Investors holding a majority in
interest of the Shares then outstanding and held by Investors;
WHEREAS, the undersigned
represent the Company and the holders of at least a majority in interest of the
Shares subscribed for by the Investors;
WHEREAS, the undersigned
further represent the holders of a majority in interest of the outstanding
Registrable Securities (as such term is defined in the Registration Rights
Agreement dated as of February 24, 2010, by and among the Company and the
Investors named therein (the “Registration Rights
Agreement”)); and
WHEREAS, pursuant to
Section 7(h) of the Registration Rights Agreement, an amendment to the
Registration Rights Agreement may be made with the written consent of the
Company and Investors holding a majority in interest of the Registrable
Securities subscribed for by the Investors.
NOW, THEREFORE in
consideration of the foregoing and the promises and covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and intending to be legally bound hereby the undersigned
hereby agree as follows:
1. It
is understood and agreed by the Investors that the Company may sell Additional
Shares and Additional Warrants at the Closing or at one or more additional
closings (each, an “Additional Closing”)
to the Investors. Any Additional Closing shall be held at the offices
of Seyfarth Xxxx LLP, 0 Xxxxxxx Xxxx, Xxxxxx, XX 00000, on such date or dates
and at such time or times as may be mutually agreed upon by the Company and the
Investors but in no event later than three (3) Business Days after the date
hereof. At the Closing, subject to the terms and conditions of the
Agreement and in reliance upon the representations and warranties of the Company
and the Investors contained in the Agreement and this Amendment, the Company may
sell the Additional Shares and Additional Warrants to the New Investors listed
on Schedule 1
to this Amendment. For purposes of this Amendment and the Agreement,
the term “Share” or “Shares” shall include the Additional Shares issued
hereunder and the term “Warrant” or “Warrants” shall include the Additional
Warrants issued hereunder.
2. Any
New Investor who participates in the Closing or an Additional Closing and
purchases Additional Shares and Additional Warrants shall sign a counterpart
signature page to the Agreement, and shall have and be subject to the rights and
obligations of a Investor hereunder, and Annex A to the
Agreement shall be amended accordingly so that upon the conclusion of the sales
of Additional Shares and Additional Warrants to the New Investors the attached
Annex A shall
be Annex A to
the Agreement. Any New Investor who participates in the Closing or an
Additional Closing and purchases Additional Shares and Additional Warrants shall
further become a party to the Registration Rights Agreement and any amendment
thereto to which the Investors are a party, in each case by signing a
counterpart signature page thereto, and shall have and be subject to the rights
and obligations of an Investor thereunder.
3. Pursuant
to Section 6.4 of the Agreement, the undersigned Investors hereby waive any
pre-emptive rights pursuant to Section 4.13 of the Agreement, and any applicable
notice period thereto, with respect of the sale by the Company of the Additional
Shares and Additional Warrants.
4. Pursuant
to Section 7(h) of the Registration Rights Agreement, the undersigned Investors
(as defined therein) hereby consent to the issuance by the Company of the
Additional Shares and Additional Warrants and consent to the addition of any New
Investor as a party to the Registration Rights Agreement and to inclusion of
such New Investor as an Investor thereunder.
5. All
questions concerning the construction, validity, enforcement and interpretation
of this Amendment shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof.
6. This
Amendment may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
2
7. Except
to the extent amended hereby, the terms and provisions of the Agreement shall
remain in full force and effect.
[SIGNATURE
PAGE FOLLOWS]
3
IN WITNESS WHEREOF, the parties have
executed this Amendment to the Securities Purchase Agreement as of the day and
year first above written.
| SINOHUB, INC. | ||
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx X. Xxxxxxx
Title:
Chief Executive Officer
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4
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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IROQUOIS
INVESTOR FUND LTD
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name: Xxxxxx
Xxxxxxxxx
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Title: Authorized
Signatory
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5
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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RAMIUS
ENTERPRISE MASTER FUND LTD
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By:
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/s/
Xxxx Xxxxxxx
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Name: Xxxx
Xxxxxxx
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Title: Authorized
Signatory
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6
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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RAMIUS
NAVIGATION MASTER FUND LTD
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By:
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/s/
Xxxx Xxxxxxx
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Name: Xxxx
Xxxxxxx
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Title: Authorized
Signatory
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7
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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FAMOUS
LINK GROUP LIMITED
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By:
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/s/
Xxxxxx Xxxx
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Name: Xxxxxx
Xxxx
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Title: Director
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8
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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||
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XXXXXX
BAY FUND LP
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By: XXXXXX
BAY CAPITAL MANAGEMENT LP,
Investment
Manager
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By:
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/s/
Xxxx Xxxx
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Name: Xxxx
Xxxx
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Title: Authorized
Signatory
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9
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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XXXXXX
BAY OVERSEAS FUND, LTD
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By: XXXXXX
BAY CAPITAL MANAGEMENT LP,
Investment
Manager
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By:
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/s/
Xxxx Xxxx
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Name: Xxxx
Xxxx
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Title: Authorized
Signatory
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10
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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CHESTNUT
RIDGE PARTNERS, LP
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By:
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/s/
Xxxxxxx Xxxx
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Name: Xxxxxxx
Xxxx
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Title: C.F.O.
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11
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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CAPE
ONE FINANCIAL LP
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By:
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/s/
Xxxx Xxxxxxxx
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Name: Xxxx
Xxxxxxxx
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Title: Manager
Member
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12
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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NAME
OF INVESTOR
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OCTAGON
CAPITAL PARTNERS
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By:
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/s/
Xxxxxx Xxxx
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Name: Xxxxxx
Xxxx
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Title: General
Partner
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13
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to the Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
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Pandora Select Partners,
L.P.
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NAME
OF INVESTOR
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By:
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Pandora
Select Advisors, LLC
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Its
General Partner
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By:
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Whitebox
Advisors, LLC
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WHITEBOX ENTITIES (see
left)
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Its
Managing Partner
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Whitebox
Combined Partners LP
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Name: Xxxxxx
X. Xxxxxxx
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Whitebox
Combined Advisors LLC
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Title: C.E.O.
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Whitebox
Advisors LLC
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Whitebox
Intermarket Partners LP
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Whitebox
Intermarket Advisors LLC
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Whitebox
Advisors LLC
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Whitebox
Special Opportunities Fund LP, Series B
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By:
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Whitebox
Special Opportunities Advisors, LLC
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Its
General Partner
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By:
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Whitebox
Advisors, LLC
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Its
Managing Member
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14
Schedule
1
NEW
INVESTORS
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(1)
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(2)
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Investor
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Aggregate
Investment
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Jayhawk
Private Equity Fund II, L.P.
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$399,999
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Paragon
Capital LP
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$250,002
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Xxxxxxx
Xxxxxx
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$150,000
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15
Annex A
SCHEDULE
OF INVESTORS
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(1)
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(2)
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Investor
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Address
and
Facsimile
Number
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Cranshire
Capital LP
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0000
Xxxxxx #000
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxxxx
Xxxxx
Fax: 000-000-0000
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Capital
Ventures International
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Attn: Xxx
Xxxxx
Fax: 000-000-0000
|
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Iroquois
Master Fund Ltd.
|
000
Xxxxxxxxx Xxx. 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx
Xxxxxxxxx
Fax: 000-000-0000
|
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Ramius
Navigation Master Fund Ltd.
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c/o/
Ramius, LLC
000
Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxxxx
Xxxxx/Xxxx Xxxxxxx
Fax:
000-000-0000
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Ramius
Enterprise Master Fund Ltd.
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c/o/
Ramius, LLC
000
Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxxxxx
Xxxxx/Xxxx Xxxxxxx
Fax:
000-000-0000
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Famous
Link Group Limited
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Dai
Zhonglin
Room 2308 Tower A, Time Court,
ShuguangXiLi Jia 0 Xxxxxxxx
Xxxxxxxx
Xxxxxxx, Xxxxx 100028
Attn: Yuequin
Ying
Fax: x00
00 0000 0000
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Xxxxxx
Bay Fund LP
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x/x
Xxxxxx Xxx Xxxxxxx Xxxx.
000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxx
Xxxx
Fax: (000)
000-0000
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Xxxxxx
Bay Overseas Fund, Ltd.
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x/x
Xxxxxx Xxx Xxxxxxx Xxxx.
000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxx
Xxxx
Fax: (000)
000-0000
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16
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(1)
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(2)
|
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Investor
|
Address
and
Facsimile
Number
|
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Chestnut
Ridge Partners, LP
|
00
Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx
Xxxx
Fax: 000-000-0000
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Cape
One Financial LP
|
000
Xxxx Xxx. 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn: Xxxx
Xxxxxxxx
Fax: 000-000-0000
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Octagon
Capital Partners
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c/o
Xxxxxx Xxxx
000
Xxxx 00xx Xx., #00X
Xxx
Xxxx, XX 00000
Fax:
|
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Whitebox
Special Opportunities Fund
Series B Partners, LP |
c/o
Whitebox Advisors, LLC
0000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn: Xxxx Xxxxxx
Fax: 000-000-0000
|
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Pandora
Select Partners, LP
|
c/o
Whitebox Advisors, LLC
0000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn: Xxxx Xxxxxx
Fax: 000-000-0000
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Whitebox
Intermarket Partners, LP
|
c/o
Whitebox Advisors, LLC
0000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn: Xxxx Xxxxxx
Fax: 000-000-0000
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Whitebox
Combined Partners, LP
|
c/o
Whitebox Advisors, LLC
0000
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Attn: Xxxx Xxxxxx
Fax: 000-000-0000
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Jayhawk
Private Equity Fund II, L.P
|
000
Xxxxx Xxxxxxxxx 000-000
Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Fax: 000-000-0000
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Paragon
Capital LP
|
c/o
Paragon Capital LP
000
Xxxx Xxxxxx, 00xx Xx.
Xxx
Xxxx, XX 00000
Attn: Xxxx
Xxxxxxxxx
Fax: 000-000-0000
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17
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(1)
|
(2)
|
|
Investor
|
Address
and
Facsimile
Number
|
|
Xxxxxxx
Xxxxxx
|
0000
Xxxxxxx X0X
Xxxx
000
Xxxxxxxxx
Xxxxx, XX 00000
Fax: 000-000-0000
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18
