AMENDMENT NO.1 TO THE WARRANT AGREEMENT
AMENDMENT
NO.1 TO THE WARRANT AGREEMENT
This
Amendment No.1, dated as of March 12, 2010 (this "Amendment"), to the Warrant
Agreement, dated as of March 7, 2008 (the "Warrant Agreement"), is entered into
by and between Xxxxxxxxx Asia Acquisition Corp., a corporation organized under
the laws of the Cayman Islands (the "Company"), with offices at 00/X Xxxxx 0,
Xxx Xxxxx Xxxxx, 00 Xxxxxx Xxxx Xxxxxxx, Xxxx Xxxx, and Continental Stock
Transfer & Trust Company, a New York corporation ("Warrant Agent"), with
offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
WHEREAS,
the Company consummated its initial public offering in March 2008, pursuant to
which the Company issued, after giving effect to the exercise of a portion of
the overallotment option, 4,239,300 units;
WHEREAS,
each unit consisted of one share of ordinary share, par value $0.001 per share,
of the Company (the "Ordinary Share") and one warrant to purchase one Ordinary
Share at an exercise price of $5.00 per share (the "Public
Warrants");
WHEREAS,
in conjunction with its initial public offering, the Company privately placed
1,150,000 warrants (the "Insider Warrants"), to certain investors named in the
Registration Statement, with each Insider Warrant exercisable into one Ordinary
Share at $5.00; and
WHEREAS,
the Company also issued an option to Broadband Capital Management, Inc.
(“Broadband”) to purchase 280,000 units each consisting of one Ordinary Share
and one warrant to purchase One Ordinary Share at $5.00 per share (the
“Representative Warrants”, and together with the Public Warrants and the Insider
Warrants, the “Warrants”);
WHEREAS,
the terms of the Warrants are governed by the Warrant Agreement and capitalized
terms used, but not defined, herein shall have the meaning given to such terms
in the Warrant Agreement;
WHEREAS,
the Company has entered into that certain Share Exchange Agreement ,dated
February 11, 2010 (the "Share Exchange Agreement"), by and among the
Company, Honesty Group Holdings Limited, a company organized under the laws of
Hong Kong (“Honesty Group”), and each of the shareholders signatories thereto,
pursuant to which the shareholders of Honesty Group will contribute all of the
outstanding capital stock of Honesty Group to the Company in exchange for
11,000,000 newly issued Ordinary Shares of the Company, subject to upward
adjustment as described in the Share Exchange Agreement (the
“Acquisition”);
WHEREAS,
pursuant to the Share Exchange Agreement, the Company agreed to seek the
approval of the holders of its outstanding Warrants to amend the Warrant
Agreement to provide that : (i) the exercise price for each Ordinary Share for
which the Warrant is exercised is increased from $5.00 to $8.00; (ii) the term
of each warrant is extended by one year to expire on the earlier of March 7,
2014 or the redemption of the Warrant in accordance with the Warrant Agreement;
and (iii) the holders of Public Warrants shall have the right to demand
redemption of their public Warrant by the Company at $0.50 per share upon the
consummation of the Acquisition (collectively, the "Warrant Redemption
Proposal");
WHEREAS,
pursuant to Section 9.8 of the Warrant Agreement, the Warrant Agreement may be
amended upon written consent of Broadband and registered holders of a majority
of the outstanding Warrants;
WHEREAS,
a majority of the outstanding Public Warrants and Insider Warrants has approved
the Warrant Redemption Proposal and given their written consent at to this
Amendment, and Broadband has given its written consent to this Amendment;
and
WHEREAS,
the conditions precedent to the consummation of the transactions contemplated by
the Share Exchange Agreement other than this Amendment have been or
simultaneously herewith are satisfied and the Closing of the
Acquisition will constitute a Business Combination within the meaning of Section
3.2 of the Warrant Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements 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 parties hereto agree
to amend the Warrant Agreement as set forth herein:
1. Amendment of Warrant
Agreement.
(a) The first sentence of Section 3.1
of the Warrant Agreement is hereby amended to read in its entirety as
follows:
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and of this Warrant
Agreement, to purchase from the Company the number of Ordinary Shares, at the
price of $8.00 per Ordinary Share, subject to the adjustments provided in
Section 4 hereof and in the last sentence of this Section 3.1.
(b) The
first sentence of Section 3.2 of the Warrant Agreement is hereby amended to read
in its entirety as follows:
A Warrant
may be exercised only during the period (“Exercise Period”) commencing on the
later of the consummation by the Company of a stock exchange, asset acquisition
or other similar business combination (“Business Combination”) (as described
more fully in the Company’s Registration Statement) or March 7, 2009, and
terminating at 5:00 p.m., New York City time on the earlier to occur of (i)
March 7, 2014 or (ii) the date fixed for redemption of the Warrants as provided
in Section 6 of this Agreement (“Expiration Date”).
(c) A new
Section 6A is hereby added to the Warrant Agreement:
6A.
Special Redemption in Connection with a Business Combination
6A.1 Redemption of Public
Warrants. Subject to the consummation of the Business Combination as
provided in Section 6A.2 hereof, any Public Warrants may be redeemed, at the
option of the holder thereof, at the office of the Warrant Agent at a price of
$0.50 per Warrant, by notice given to the Company at any time prior to the
special meeting of Warrantholders to be held on March 8, 2010, and any
adjournment thereof (the “Special Meeting”), provided, however, that if any
holder of Public Warrants fails to attend, in person or by proxy, the Special
Meeting, or fails to give written notice prior to the Special Meeting of such
holder’s intention to continue to hold Public Warrants on the terms of the
Warrant Agreement, as amended from time to time, such holder shall be deemed to
have demanded redemption of all the Public Warrants held by such holder on the
terms of this Section 6A. The Company may, at its sole election and without
notice to any holder, extend the period of time for an holder to elect to redeem
a Public Warrant pursuant to this Section 6A.
6A.2
Conditions to Redemption. The obligation of the Company to redeem any
Public Warrant as provided in Section 6A.1 above is conditioned upon the Company
consummating a Business Combination by March 12, 2010, or such later date as
maybe provided in the Company’s Amended and Restated Articles of Incorporation,
and receipt from the holder of the certificate representing the Public Warrant
and a properly completed letter of transmittal within twenty (20) business days
after consummation of the Business Combination.
2. Form of
Warrant. After the effective date of this Amendment, the terms
of each Public Warrant shall be amended without further action on the part of
any holder and notwithstanding the terms of any certificate representing such
Warrant, each Warrant shall have the terms set forth in the Warrant Agreement as
amended by this Amendment.
3. Miscellaneous.
(a)
Governing Law. The validity, interpretation, and performance of this
Amendment and of the Public Warrants shall be governed in all respects by the
laws of the State of New York, without giving effect to conflicts of law
principles. The parties agree that all actions and proceedings arising out of
this Amendment or any of the transactions contemplated hereby shall be brought
in the United States District Court for the Southern District of New York or in
a New York State Court in the County of New York and that, in connection with
any such action or proceeding, submit to the jurisdiction of, and venue in, such
court. Each of the parties hereto also irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim arising out of this Amendment or
the transactions contemplated hereby.
(b)
Binding Effect. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns.
(c)
Entire Agreement. This Amendment sets forth the entire agreement and
understanding between the parties as to the subject matter thereof and merges
and supersedes all prior discussions, agreements and understandings of any and
every nature among them. Except as set forth in this Amendment, provisions of
the Warrant Agreement which are not inconsistent with this Amendment shall
remain in full force and effect.
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(d)
Severability. This Amendment shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Amendment or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as part of this Amendment a provision as similar in terms to such invalid
or unenforceable provision as may be possible and be valid and
enforceable.
(e)
Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall constitute but one and the same
instrument.
(f) Indemnification. The
Company agrees to indemnify and save harmless the Warrant Agent from and against
all claims, liabilities, losses, damages, charges, expenses, actions or causes
of action that may be incurred by or brought against the Warrant Agent related
to the execution of this Amendment.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the undersigned have executed this First Amendment to the
Warrant Agreement as of the date first set forth below.
| XXXXXXXXX ASIA ACQUISITION CORP. | ||||
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By:
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/s/ Xxx Xx
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Name:
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Xxx
Xx
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Title:
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CFO
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Date:
2010.3.12
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title
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President
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Date:
3/12/10
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Acknowledged
and Agreed:
BROADBAND
CAPITAL MANAGEMENT, INC.
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By:
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/s/ Xxxx Xxxx
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Name:
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Xxxx
Xxxx
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Title:
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Chairman
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Date:
3/12/10
Signature
Page to the Amendment
