SHARE ISSUANCE AGREEMENT
This Share Issuance Agreement ("Agreement"), is made and
entered into as of the 7th day of
April, 2009 by and among China Broadband, Inc., a Nevada corporation (the “Parent”), China Broadband,
Ltd., a Cayman Islands company and wholly owned subsidiary of the Parent (“China Broadband Cayman or
“Buyer” and,
collectively, the “Company” ) on the one hand and
Wanshi Wangjing Media Technologies (Beijing) Co., Ltd., (a/k/a AdNet Media
Technologies (Beijing) Co., Ltd.), a PRC based advertisement insertion
business (“AdNet”), and the equity owners
of AdNet as listed hereto on Schedule
A (the “AdNet
Shareholders”) on the other. Parent, China Broadband Cayman,
WFOE, AdNet and the AdNet Shareholders are hereinafter sometimes collectively
referred to as the “Parties.”
RECITALS:
A. The
Company, through China Broadband Cayman as an indirect subsidiary of Parent in
the People’s Republic of China (the “PRC”), is entering
into a Loan Agreement, Equity Option Agreement and Trust Agreement, between
itself, a Trustee (as defined in such agreements) acting as nominee on behalf of
China Broadband Cayman, AdNet and the AdNet Shareholders substantially in the
form as annexed hereto as Exhibit
A (the “AdNet Pledge
Documents”), pursuant to which, among other things, China Broadband
Cayman is acquiring in pledge all of the issued and outstanding capital stock of
AdNet on a fully diluted basis (the “AdNet Shares”), through an
exchange (the “Share
Exchange”) of Parent’s common stock, par value $0.001 per share (the
“Parent Common Stock”)
to be issued to the AdNet Shareholders, resulting in AdNet becoming held and
owned under PRC law by a nominee as on behalf of WFOE, which in turn, is
indirectly owned and controlled by Parent and, in the AdNet Shareholders owning
11,254,898 Parent Common Stock (the “Broadband
Shares”).
B. It
is the intention of the parties hereto that the Share Exchange shall qualify as
a transaction in securities exempt from registration or qualification under the
Securities Act of 1933, as amended, and under the applicable securities laws of
each state or jurisdiction where the AdNet Shareholders reside.
C. The
board of directors (or managers, as the case may be) of each of Parent, China
Broadband Cayman, and AdNet as well as the AdNet Shareholders, each deem it to be in
the best interests of Parent, China Broadband Cayman, AdNet and their respective
shareholders to consummate the Share Exchange.
D. AdNet
currently holds, among other things, an Internet Content Provider’s license in
the PRC, and is licensed to provide content sensitive advertisement and other
media in internet café’s in the PRC.
NOW, THEREFORE, in
consideration of the mutual covenants, agreements, representations and
warranties contained in this Agreement, the parties hereto agree as
follows:
DEFINITIONS
As used
in this Agreement, the following terms shall have the meanings set forth
below:
“Additional Shares” means the
aggregate maximum of 637,777 Shares of Parent Common Stock that may be issued to
AdNent Shareholders if a Delinquency Event occurs.
“Applicable Law” means any
domestic or foreign law, statute, regulation, rule, policy, guideline or
ordinance applicable to the businesses of the Parties, this Agreement, the Share
Exchange and/or the Parties.
“Affiliate” means any one or
more Persons controlling, controlled by or under common control with any other
Person or their affiliate.
“AdNet Corporate Documents”
shall be as defined in Section
2.2(d).
“AdNet Loan” shall
mean the $100,000 Loan made to AdNet pursuant to the AdNet Pledge
Documents.
“AdNet Executives” means
Xxxxxxxxx Xx, in her capacity as President and Chief Executive Officer of AdNet,
and Xxxxxxx Xxxx in his capacity as Chief Financial Officer of AdNet.
“AdNet Shareholders” shall be
as defined in the preamble to this Agreement, above.
“AdNet Shares” shall mean 100%
of the equity interests authorized for issuance by AdNet as defined in the
Recital to this Agreement, above, which are outstanding and held by the AdNet
Shareholders or their nominees prior to the Closing Date.
“Business Day” shall mean any
day, excluding Saturday, Sunday and any other day on which national banks
located in New York, New York shall be closed for business.
“Closing” shall be as defined
in Section 1.4.
“Closing Date” shall mean the
date upon which the Share Exchange shall be consummated pursuant to the AdNet
Pledge Documents as set forth in Section 1.4,
below.
“Dollar” and “$” means lawful money of the
United States of America.
“Common Stock” or “Parent Common Stock” means the
95,000,000 shares of common stock, $0.001 par value per share, of
Parent.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Broadband Shares” shall mean
the 11,254,898 shares of Parent Common Stock which, for avoidance of doubt,
represents Fifteen Percent (15%) of the Parent Fully-Diluted Common Stock, as
contemplated by this Agreement, to be issued to the AdNet Shareholders in
exchange for 100% of the outstanding capital stock of AdNet, on a fully diluted
basis.
“GAAS” means generally accepted
accounting principles in the United States of America as promulgated by the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board or any successor Institutes concerning the treatment of any
accounting matter.
“Jinan Broadband” or “WFOE” means Xxx Xx Broadband,
Ltd., a company formed in the People’s Republic of China as a subsidiary of
China Broadband Cayman, which operates the existing broadband cable network
business and programming guide periodical business of the Company in the
PRC.
“Knowledge” means actual
knowledge.
“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.
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“Material Adverse Effect” with
respect to any entity or group of entities means any event, change or effect
that has or would have a materially adverse effect on the financial condition,
business or results of operations of such entity or group of entities, taken as
a consolidated whole.
“Outstanding Parent Common
Stock” means the 50,585,455 shares of Parent Common Stock issued and
outstanding as of the Closing Date.
“Parent Fully-Diluted Common
Stock” means, as at the time in question, the 63,777,755 maximum number
of shares of Parent Common Stock, inclusive of (i) the Outstanding Parent Common
Stock, (ii) the Broadband Shares being issued hereby, (iii) all shares
underlying certain warrants or outstanding options, but exclusive of shares
issuable upon exercise of any warrants exercisable at $2.00 or securities
underlying convertible notes issued in January 2008.
“Parent Indemnified Parties”
shall be as defined in Section 7.1(a),
below.
“Parent Securities” shall be as
defined in Section
1.3, below.
“Person” means any individual,
corporation, partnership, trust or unincorporated organization or a government
or any agency or political subdivision thereof.
“Reporting Delinquency” shall
be as defined in Section 7.4.
“SEC Reports” shall be as
defined in Section
3 below.
“Tax” (and, with correlative
meaning, “Taxes” and
“Taxable”)
means:
“Trustee” means the Trustee
appointed in accordance with the AdNet Pledge Documents, which Trustee is
initially Wang Yang Qi a/k/a Xxxxxxx Xxxx.
(i) any
income, alternative or add-on minimum tax, gross receipts tax, sales tax, use
tax, ad valorem tax, transfer tax, franchise tax, profits tax, license tax,
withholding tax, payroll tax, employment tax, excise tax, severance tax, stamp
tax, occupation tax, property tax, environmental or windfall profit tax, custom,
duty or other tax, impost, levy, governmental fee or other like assessment or
charge of any kind whatsoever together with any interest or any penalty,
addition to tax or additional amount imposed with respect thereto by any
governmental or Tax authority responsible for the imposition of any such tax
(domestic or foreign), and
(ii) any
liability for the payment of any amounts of the type described in clause (i)
above as a result of being a member of an affiliated, consolidated, combined or
unitary group for any Taxable period, and
(iii) any
liability for the payment of any amounts of the type described in clauses (i) or
(ii) above as a result of any express or implied obligation to indemnify any
other person.
“Tax Return” means any return,
declaration, form, claim for refund or information return or statement relating
to Taxes, including any schedule or attachment thereto, and including any
amendment thereof.
“AdNet Pledge Documents” shall
be as defined in the Recitals to this Agreement.
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SECTION
1.
THE SHARE EXCHANGE; OFFICERS
AND DIRECTORS
1.1
|
The Share
Exchange.
|
(a) On
the Closing Date and subject to and upon the terms and conditions of the AdNet
Pledge Documents and the terms provided herein, (i) the AdNet Shareholders shall
irrevocably sell, assign, transfer and exchange to the Trustee on behalf of
China Broadband Cayman, by depositing with its Trustee, marketable title
to all of their issued and outstanding AdNet Shares, and (ii) AdNet
shall pay $100,000 directly to the China Broadband Cayman in U.S.
funds.
(b) On
the Closing Date, and in exchange for the transfer to it of the AdNet Shares and
entry into and consummation of, the terms of the AdNet Pledge Documents and this
Agreement, (i) Parent shall issue to the AdNet Shareholders the Broadband
Shares, and (ii) China Broadband Cayman or Parent shall loan $100,000 to AdNet
as secured by the AdNet Pledge Documents.
(c) On
the Closing Date, any other outstanding notes, warrants, or options to purchase
or agreements or obligations to issue, securities of AdNet, shall be cancelled
and retired and cease to exist as at the Closing Date.
(d) All
other conditions to Closing as set forth herein shall have been complied with on
or before the Closing Date.
1.2 Exemption from
Registration. The Parties intend that the issuance of (i) the
Broadband Shares to be issued by Parent, shall be exempt from the registration
requirements of the Securities Act pursuant to Section 4(2), or Regulation S of
the Securities Act, applicable state laws and the rules and regulations
promulgated under the foregoing.
1.3 Purchase
Price. The purchase price to be paid by the AdNet Shareholders
and Adnet for the Broadband Shares shall be the AdNet Shares and
$100,000.
1.4 Closing.
The
closing of the Share Exchange (the “Closing”) will take place at
the offices of Xxxxxxx Xxxx LLP, counsel to the Company, at its office in New
York, New York, within ten days following the delivery of satisfaction or waiver
of the conditions precedent set forth in Section 4 or at such other date as
Parent and the AdNet Shareholders shall agree (the “Closing Date”), but in no
event shall the Closing Date occur later than April 14, 2009, unless such date
shall be extended by mutual agreement of AdNet and the Parent.
1.5
|
Restrictions On
Resale
|
The
Broadband Shares will not be registered under the Securities Act, or the
securities laws of any state, and cannot be transferred, hypothecated, sold or
otherwise disposed of until: (i) a registration statement with respect to such
securities is declared effective under the Securities Act, or (ii) Parent
receives an opinion of counsel reasonably satisfactory to counsel for Parent,
that an exemption from the registration requirements of the Securities Act is
available. For purposes of the opinion in the preceding sentences,
the Company will not object to a bonafide opinion provided by any reputable U.S.
law firm with an active U.S. securities practice.
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The
certificates representing securities issued under this Agreement shall contain a
legend substantially as follows:
“THE
SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR THE COMPANY RECEIVED AN
OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO CONSEL TO THE
COMPANY THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS
AVAILABLE.”
1.7
|
Exchange of
Certificates.
|
(a) On
or immediately after the Closing Date the AdNet Shareholders shall be required
to surrender all their AdNet Shares by delivery of a transfer instrument or
stock power valid and binding under PRC and US law, to the Trustee on behalf of
the Company pursuant to the AdNet Pledge Documents and this Agreement, and the
AdNet Shareholders shall be entitled upon such transfer and surrender of all of
their AdNet Shares, to receive in exchange therefor (and presuming all other
conditions hereto are satisfied), certificates representing the proportionate
number of Broadband Shares into which the AdNet Shares theretofore surrendered
shall have been exchanged pursuant to this Agreement as set forth under the
definition of Broadband Shares, above. Until so surrendered, each
outstanding instrument, agreement or document which, prior to the Closing Date,
represented the AdNet Shares or any right to receive any kind of ownership
interest in AdNet, shall be deemed for all corporate purposes, subject to the
further provisions of this Article 1, to
evidence the ownership of the number of whole Broadband Shares for which such
AdNet Shares have been so exchanged. No dividend or distribution
payable to holders of Broadband Shares of record as of any date subsequent to
the Closing Date shall be paid or issued to the owner or holder of any
instrument representing ownership of AdNet Shares that has not complied with the
provisions hereof for the transfer of such shares, until such certificate or
instruments representing ownership of all the relevant AdNet Shares, together
with an appropriately executed stock transfer and assignment form, are duly
delivered as provided in this Article
1.
(b) All
Broadband Shares for which the AdNet Shares shall have been exchanged pursuant
to this Article
1 shall be deemed to have been issued in full satisfaction of all rights
pertaining to the AdNet Shares. For avoidance of doubt, the repayment
of the AdNet Loan shall not be deemed satisfaction of give rise to any right of
a party to obtain return of any AdNet Shares required to be delivered
hereby.
SECTION
2
REPRESENTATIONS AND
WARRANTIES OF ADNET AND ADNET SHAREHOLDERS
AdNet, the AdNet Executives and, to
each of their Knowledge, each AdNet Shareholder, hereby warrants and represent
as follows (with the exception of Section 2.15 below which representations and
warranties are made individually by each of the AdNet Executives and AdNet
Shareholders with respect to such AdNet Executive or AdNet
Shareholder):
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2.1 Organization and Good
Standing: Ownership of Shares. AdNet is a company duly
organized, validly existing and in good standing under the laws of the Beijing,
China and, has no outstanding subscriptions, rights, options, warrants or other
agreements obligating to issue, sell or transfer any stock or other securities
of AdNet. AdNet has the corporate power to own its own property and
other assets and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material negative impact.
2.2 Corporate Authority,
Government Consents. AdNet has the corporate power and
authority to enter into this Agreement and the AdNet Pledge Documents and to
perform their respective obligations hereunder and thereunder. The
execution and delivery of this Agreement and the consummation of the transaction
contemplated hereby and thereby have been duly authorized by the board of
directors of AdNet and AdNet Shareholders and by the respective boards of any
AdNet Shareholder which is an entity. AdNet has obtained and secured
all necessary corporate and government (including administrative) related
consents and permits necessary to enter into the AdNet Pledge Documents and this
Agreement and consummate the transaction contemplated thereby and
hereby. The execution and performance of this Agreement will not
violate or conflict with any provision of the Articles of Incorporation, by-laws
liable of similar corporate governance instruments of AdNet, each as amended and
in effect on the date of this Agreement (the “AdNet Corporate
Documents”). This Agreement is fully enforceable AdNet and its
shareholders. No notices to or consents from third parties or any governmental
agency, creditor or other third party are required to be given which will not
have been given (and consents, if any, obtained) prior to the Closing Date.
AdNet has received all necessary consents or waivers from any other company or
entity which are necessary in order for AdNet to operate and sell its
business.
2.3 Ownership of AdNet
Shares. The AdNet Shareholders set forth on Schedule
A are the sole owners of record and beneficially of all of the issued and
outstanding AdNet Shares, which shares are duly authorized, validly issued,
fully paid and non assessable and owned free and clear of all rights, claims,
liens and encumbrances, and have not been sold, pledged, assigned or otherwise
transferred except pursuant to this Agreement and the AdNet Pledge
Documents.
2.4 Financial Statements, Books
and Records. The simulated financial statements (balance
sheet, income statement, notes) of Adnet for fiscal year ended December 31, 2008
(the “Financial
Statements”) have been presented to Parent. The Financial
Statements fairly represent the financial position of AdNet as of such date and
the results of their operations for the periods then ended. The
Financial Statements were a compilation and were not audited but were prepared,
upon information, in accordance with generally accepted accounting
principles applied on a consistent basis with prior periods except as otherwise
stated therein. The books of account and other financial records of
AdNet are complete and correct in all material respects and are maintained in
accordance with good business and accounting practices.
2.5 Access to Records/Full
Disclosure. The corporate financial records, minute books and
other documents and records of AdNet, have been made available to Parent prior
to the Closing hereof. No representation or warranty by AdNet in this
Agreement or in any of the AdNet Pledge Documents contains or will, as of the
Closing, contain any untrue statement of a material fact or omits or will, as of
the Closing, omit to state any fact necessary to make any statement herein or
therein not materially misleading or omit to contain any material
information.
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2.6 No Material Adverse
Changes. Except as otherwise described on Schedule
2.6 hereto, since AdNet’s inception, there has not been and through the
Closing Date there shall not be:
(a) any
material adverse change in the financial position of AdNet except changes
arising in the ordinary course of business, which changes have not materially
and adversely affected the
financial position of AdNet and there will not be at the Closing Date any
material liabilities or other indebtedness incurred by AdNet;
(b) any
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise), license or business
license or permit or of AdNet,
whether or not covered by insurance;
(c) any
declaration, setting aside or payment of any dividend or distribution with
respect to any redemption or repurchase of AdNet capital
stock;
(d) any sale
of an asset (other than in the ordinary course of business as set forth on Schedule
2.6 hereto ) or any mortgage or pledge by AdNet of any properties or
assets, other than as set forth in the subsection titled “Section 2.13 Real Estate” below or
any agreements or arrangements to enter into any of the foregoing;
or
(e) any
adoption by AdNet of any pension, profit sharing, retirement, stock bonus, stock
option or similar plan or arrangement.
(f) any loan
or advance by or on behalf of AdNet to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or any agreements or arrangements to enter into any of the
foregoing;
(g) any
material increase in the annual level of compensation of any executive employee
of AdNet; or
(h) any entry
into, or modification of any contract, agreement or any entry into an “off
balance sheet” arrangement or interested party transaction by
AdNet.
2.7 Taxes. AdNet,
has filed all material tax, governmental and/or related forms and reports (or
extensions thereof) due or required to be filed and has (or will have) paid or
made adequate provisions for all taxes or assessments which had become due as of
December 31, 2007, and there are no deficiency notices outstanding.
2.8 Compliance with
Laws. AdNet has complied with all federal, provincial,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would have a Material Adverse Effect on AdNet or the
Company.
2.9 No
Violations. The execution, delivery and performance of this
Agreement or the AdNet Pledge Documents and the consummation of the transactions
contemplated hereby will not:
(a) violate
any provision of the Adnet Corporate Documents;
(b) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon, AdNet or any AdNet
Shareholder or upon the properties or business of AdNet;
(c) violate, constitute
a material breach of or default under, any agreement, indenture, mortgage,
license or other instrument or document to which AdNet or any AdNeet Shareholder
or officers are party or by or to which it or any of their assets or properties
are bound and will not violate any judgment, decree, order, writ, rule, statute,
or regulation applicable to AdNet or its assets or
properties; or
(d) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein which could have a materially adverse effect on
the business or operations of AdNet.
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2.10 Actions and
Proceedings. AdNet is not a party to any material pending
litigation or, to its knowledge, any governmental investigation or proceeding
not reflected in the Financial Statements, and to its best knowledge, no
material litigation, claims, assessments or non-governmental proceedings are
threatened against AdNet.
2.11 Agreements. Schedule
2.11 sets forth any material contract, agreement or arrangement to which
AdNet is a party or by or to which it or its assets, properties or business are
bound or subject, whether written or oral. The foregoing does not
include any agreements of subsidiaries of AdNet.
2.12 Brokers or
Finders. No broker's or finder's fee will be payable by AdNet
in connection with the transactions contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions by AdNet or any of its
shareholders.
2.13 Real
Estate. AdNet owns no real property and is only a party to a
single lease agreement with respect to space leased at its Beijing Officers, at
the rent rate and addresses as set forth on Schedule
2.13. AdNet is not a party to any sublease or similar
arrangement.
2.14 Capitalization. On
the Closing Date, the authorized capital stock of AdNet consists of equity
interests, all of which will constitute the AdNet Shares and be duly and
unconditionally owned by Buyer after the Share Exchange. AdNet has
not granted, issued or agreed to grant, issue or make any warrants, options,
subscription rights or any other commitments of any character relating to the
issuance of any securities of AdNet or to the issued or unissued shares of
capital stock or any other securities of AdNet. AdNet has not issued
or agreed to issue any notes or debt, or preferred instruments.
2.15 Securities Representations
and Warranties of Investor Under Regulation D. The offer and sale of the
Broadband Shares hereby is being made by the Parent in reliance on exemptions
from the registration requirements of the Securities
Act. Accordingly, each AdNet Shareholder and AdNet Executive hereby
represents, warrants and covenants with the Company as follows:
(a) Accredited
Investor. The AdNet Shareholder and Executive is an
“Accredited Investor”, as such term is defined in Rule 501 of Regulation D of
the Securities Act.
(b) Legal Power. Each
AdNet Shareholder and Executive has the requisite individual, corporate,
partnership, limited liability company, trust, or fiduciary power, as
appropriate, and is authorized, if such person is a corporation, partnership,
limited liability company, or trust, to enter into this Agreement, to grant the
releases sought herein and to acquire and accept the Broadband Shares being
issued to them, and to carry out and perform its obligations under this
Agreement.
(c) Due
Execution. This Agreement has been duly authorized, if such
AdNet Shareholder or AdNet Executive is a corporation, partnership, limited
liability company, trust or fiduciary, executed and delivered by such AdNet
Shareholder, or Executive, and, upon due execution and delivery by the Parent,
China Broadband Cayman and AdNet and AdNet Shareholder, this Agreement will be a
valid and binding agreement of such AdNet Shareholder.
(d) Access to
Information. Such AdNet Shareholder has reviewed this
Agreement and the SEC Reports of the Parent. Such AdNet Shareholder
represents that it/he/she has been given full and complete access to the Company
and to all materials relating to the business, finances and operations of the
Company and materials relating to the offer and issuance of the Broadband Shares
herein which have been requested by the AdNet Shareholder. Each such
AdNet Shareholder represents that he/she/it has been afforded the opportunity to
ask questions of, and has inquired with, the officers of the Parent and its
representatives regarding its business prospects and the Broadband Shares, all
as such AdNet Shareholder or such Person’s qualified representative have found
necessary to make an informed investment decision to enter into this Agreement
and/or acquire the Broadband Shares. Neither such inquiries nor any
other due diligence investigation conducted by such AdNet Shareholder or any of
its advisors or representatives shall modify, amend or affect such shareholder’s
right to rely on the Parent’s representations and warranties contained herein.
Each AdNet Shareholder is also specifically aware of the lack of trading market
and illiquidity of the Parent Common Stock generally, (including the Broadband
Shares) and that a market may never develop. In addition, the AdNet
Shareholder is aware that the Company is in need of additional financing and
that it may not be able to find such financing or obtain loans for various
reasons, including, without limitation, the economic crisis, the lack of
liquidity, and the Company’s financial condition.
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(e) Restricted
Securities.
(i) Each
AdNet Shareholder has been advised that the Broadband Shares have not been
registered under the Securities Act or any other applicable securities laws and
that Broadband Shares are being offered and sold pursuant to Section 4(2) of the
Securities Act and/or Rule 506 of Regulation D thereunder and/or Regulation S,
and that the Company’s reliance upon Section 4(2) and/or Rule 506 of Regulation
D or Regulation S is predicated in part on such Person’s representations as
contained herein. Each AdNet Shareholder acknowledges that the
Broadband Shares will be issued as “restricted securities” as defined by Rule
144 promulgated pursuant to the Securities Act. None of the Broadband
Shares may be resold in the absence of an effective registration thereof under
the Securities Act and applicable US Federal or state securities laws unless, in
the opinion of the Parent’s counsel or counsel reasonably satisfactory to
counsel for parent, an applicable exemption from registration is available, it
being understood that, for purposes of such opinion, the Company will not object
to a bonafide opinion rendered by any reputable U.S. based law firm with an
active U.S. Securities Practice.
(ii) Each
AdNet Shareholder represents that such AdNet Shareholder is acquiring the
Securities for such Person’s own account, and not as nominee or agent, for
investment purposes only and not with a view to, or for sale in connection with,
a distribution, as that term is used in Section 2(11) of the Securities Act, in
a manner which would require registration under the Securities Act or any state
securities laws.
(iii) Each
AdNet Shareholder understands and acknowledges that the Broadband Shares, will
bear substantially the following legend:
“THE
SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A REGISTRATION STATEMENT WITH
RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR THE
COMPANY THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS
AVAILABLE.”
(iv) Each
AdNet Shareholder acknowledges that an investment in the Securities is not
liquid and is transferable only under limited conditions. Each AdNet
Shareholder acknowledges that such securities must be held indefinitely unless
they are subsequently registered under the Securities Act or an exemption from
such registration is available.
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(v) Each
AdNet Shareholder acknowledges and understands that Parent was previously deemed
a “blank check” shell company, for the purposes of Rule 144. Accordingly, among
other restrictions, in the event that a Reporting Delinquency (as hereinafter
defined) occurs, AdNet’s and AdNet Shareholder’s only recourse will
be the receipt of Additional Shares.
(f) AdNet Shareholder Sophistication and
Ability to Bear Risk of Loss. Each AdNet Shareholder
acknowledges that it is able to protect its interests in connection with the
acquisition of the Broadband Shares and entry into this Agreement and the AdNet
Pledge Documents and can bear the economic risk of investment in such securities
without producing a material adverse change in such Investor’s financial
condition. Each AdNet Shareholder either alone or with such Person’s
representative(s), otherwise has such knowledge and experience in financial or
business matters that such Investor is capable of evaluating the merits and
risks of entry into this Agreement and the AdNet Pledge Documents an investment
in the Broadband Shares.
(g) Purchases by
Groups. Each AdNet Shareholder represents, warrants and
covenants that it is not entering into this Agreement or acquiring or holding
the Broadband Shares as part of a group within the meaning of Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended.
SECTION
3.
REPRESENTATIONS AND
WARRANTIES OF PARENT
Parent hereby represents and warrant to
AdNet, as follows:
3.1 Organization and Good
Standing. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Nevada. Parent has the corporate power to own its own property and
other assets and to carry on its business as now being conducted and are duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material negative impact.
3.2 Corporate
Authority. Parent and, China Broadband Cayman each have the
corporate power to enter into this Agreement and to perform its respective
obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Parent, and by Parent as sole
shareholder and by the board of directors of China Broadband Cayman, and, by
China Broadband Cayman as required by the By-laws of Parent and of China
Broadband Cayman. This Agreement is fully enforceable as against the
Buyer and Parent.
3.3 Parent
Capitalization. As of the date of this Agreement, Parent is
authorized to issue 95,000,000 shares of Common Stock, $0.001 par value per
share and 5,000,000 shares of blank check convertible preferred
stock. An aggregate of 50,585,455 shares of Parent Common Stock are
issued and outstanding. with 2,500,000 shares of common stock
issuable under the 2008 Stock Option Plan, of which, 317,500 are issuable upon
exercise of outstanding options granted under such Plan. Other than
as set forth on Schedule
3.3, no other shares of Common Stock are reserved for issuance pursuant
to any convertible securities, options or warrants. The Broadband Shares will, at the
Closing, represent fifteen percent (15%) of the Parent Fully-Diluted Common
Stock.
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3.4 Parent Balance Sheet; Assets
and Liabilities. The Form 10K/A of Parent for the fiscal year
ended December 31, 2007 includes the audited balance sheet, statement of
operations and statement of cash flows of Parent as at December 31,
2007 and for the fiscal year then ended (the “Parent 2007 Audited Financial
Statements”). The Form 10QSB of Parent for each of the
quarters ended March 31, 2008,
June 30, 2008 and September 30, 2008 as
amended to date, includes the unaudited balance sheet, statement of operations
and statement of cash flows of Parent as at such date and for the periods then
ended (the “Parent September
2008 Financial Statements” and, collectively with the Parent 2007 Audited
Financial Statements, the “Parent Financial Statements”). Except as
set forth on the Parent’s Balance Sheet as at September 30, 2008 as accrued to
date, and for all periods subsequent thereto, Parent has no other assets and has
incurred no other liabilities, debts or obligations, whether fixed, contingent
or otherwise required to be set forth on a balance sheet prepared in accordance
with GAAP. The books of account and other financial records of Parent
are in all respects complete and correct in all material respects and are
maintained in accordance with good business and accounting
practices. Parent does not have any other balance sheets arrangements
as defined in Regulation S-K.
3.5 No Material Adverse
Changes. Since September 30, 2008, there has not been and will
not be at the Closing Date:
(a) any
material liabilities or other indebtedness incurred by Parent other than as
contemplated by the AdNet Pledge Documents;
(b) any
change in the financial position of Parent except changes arising in the
ordinary course of business, or related to its decline in stock price,
illiquidity and related recent market changes resulting from the ensuring
economic crisis generally, (which includes, without limitation, inability of the
Parent to find financing or obtain loans, or develop an active trading market
for its securities);
(c) any
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of Parent whether or
not covered by insurance;
(d) any
declaration setting aside or payment of any dividend or distribution with
respect to any redemption or repurchase of Parent capital
stock;
(e) any
sale of an asset (other than in the ordinary course of business) or any mortgage
pledge by Parent of any properties or assets; or
(f) any
loan or advance to any shareholder, officer, director, employee, consultant,
agent or other representative or made any other loan or advance otherwise than
in the ordinary course of business and certain salaries of executive officers
are continuing to be accrued and, other than the Loan Agreement and related
Pledge Agreements entered into in 2008 to facilitate the acquisition of Shandong
Newspaper in the PRC;
(g) any
material increase in the annual level of compensation of any executive employee
of Parent;
(h) any
entry into, or material modification of any contract, agreement or any entry
into an “off balance sheet” arrangement or interested party transaction other
than as would not have a Material Adverse Effect.
3.6 Taxes. Parent
has timely filed all material tax, governmental and/or related forms and reports
(or extensions thereof) due or required to be filed and has paid or made
adequate provisions for all taxes or assessments which have become due as of the
Closing Date, and there are no deficiencies outstanding.
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3.7 Compliance with
Laws. Parent has complied with all federal, state, county and
local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, which, if not
complied with, would materially and adversely affect the business of Parent or
the trading market for the Parent Shares. The Parent’s record keeping
and financial reporting compliance and records shall permit compliance with GAAS
and the Xxxxxxxx-Xxxxx Act, as now in effect.
3.8 Actions and
Proceedings. Parent is not a party to any material pending
litigation or, to its knowledge, any governmental proceedings are threatened
against Parent.
3.9 Periodic
Reports. Parent is current in the filing of all forms or
reports with the Securities and Exchange Commission (“SEC”), and has been a
reporting company under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”),
however, has filed on an extension request on form 12b-25. All such
reports and statements filed by Parent with the SEC since December 31, 2007
(collectively, “SEC
Reports”) (i) complied in all material respects
with the requirements of the Exchange Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder and the regulations of any market
on which Parent’s securities are traded; and (ii) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstance under which they were made, not misleading, except as to the extent
that the same have been revised or amended to date.
3.10 Disclosure. Parent
has (and at the Closing it will have) disclosed in writing to AdNet Shareholders
all events, conditions and facts materially affecting the business, financial
conditions or results of operation of Parent all of which have been set forth
herein. Neither Parent nor WFOE have in the past nor will they at the Closing or
thereafter, withheld disclosure of any such events, conditions, and facts which
they have knowledge of or have reasonable grounds to know may
exist.
3.11 Access to
Records. The corporate financial records, minute books, and
other documents and records of Parent have been made available to AdNet
Shareholders prior to the Closing hereof.
3.12 No
Breach. The execution, delivery and performance of this
Agreement and the consummation of WFOE do not:
(a) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which Parent or of the terms
hereof is a party or by or to which it or any of its assets or properties may be
bound or subject;
(b) violate
any order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body against, or binding upon, Parent or upon the
securities, properties or business to Parent or China Broadband Cayman;
or
(c) violate
any statute, law or regulation of any jurisdiction applicable to the
transactions contemplated herein.
3.13 Brokers or
Finders. No broker's or finder's fee will be payable by Parent
or China Broadband Cayman in connection with the transactions contemplated by
this Agreement, nor will any such fee be incurred as a result of any actions of
Parent or China Broadband Cayman.
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3.14 Authority to Execute and
Perform Agreements. Parent and China Broadband Cayman each
have the full legal right and power and all authority and approval under Nevada
or Cayman Islands law as required to enter into, execute and deliver this
Agreement and all other agreements relating to the Closing and to perform fully
its obligations hereunder. This Agreement and all other agreements or
instruments related hereto, have been duly executed and delivered and is the
valid and binding obligation of Parent enforceable in accordance with its terms,
except as may be limited by bankruptcy, moratorium, insolvency or other similar
laws generally affecting the enforcement of creditors' rights generally. The
execution and delivery of this Agreement and any other Agreement relating hereto
and the consummation of the transactions contemplated hereby and the performance
by Parent of this Agreement or any other Agreement relating hereto to which
either is a party, in accordance with its respective terms and conditions will
not:
(a) violate any provision of the
Parent’s Articles of
Incorporation of By-laws as amended to date
(b) violate any order, judgment, injunction,
award or decree of any court, arbitrator or governmental or regulatory body in
the United
States against, or binding
upon, the Company or upon the properties or business of the
Company;
(c) violate, constitute
a material breach of or default under, any agreement, indenture, mortgage,
license or other instrument or document to which the Company or its shareholders
or officers are party and will not violate any judgment, decree, order, writ,
rule, statute, or regulation applicable to the Company or its
properties; or
(d) violate
any statute, law or regulation of any US jurisdiction applicable to the
transactions contemplated herein which could have a materially adverse effect on
the business or operations of the Company.
SECTION
4.
CONDITIONS
PRECEDENT
4.1 Conditions Precedent to the
Obligations of Parent. All obligations of Parent and the
Company under this Agreement or any other instrument or any agreement
contemplated hereby are subject to the fulfillment, prior to or as of the
Closing Date, as indicated below, of each of the following conditions, any one
of which may be waived at Closing by the Board of the Parent (or an executive
officer of Parent acting on direction of the Board):
(a) The
representations and warranties by or on behalf of AdNet, AdNet Executives and
AdNet Shareholders contained in this Agreement, or the AdNet Pledge Documents
shall be true in all material respects at and as of Closing Date as though such
representations and warranties were made at and as of such time.
(b) AdNet, AdNet Executives and the AdNet Shareholders shall have performed and
complied in all material respects, with all covenants, agreements, and
conditions set forth in, and shall have executed and delivered all documents
required by this Agreement to be performed or complied with or executed and
delivered by it prior to or at the Closing, including, without limitation, all
of the covenants and agreements of AdNet, AdNet Executives and the AdNet Shareholders set
forth in Section
5 of this Agreement.
(c) On
the Closing Date, the AdNet Executives shall have delivered to Parent a certificate,
duly executed by such Person and certifying, that to the best of such Person’s
knowledge and belief, that
the representations and warranties of AdNet set forth in this Agreement
are true and correct in all material respects.
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(d) On
or before the Closing, the Board of Directors of AdNet shall have approved, in
accordance with PRC law and the AdNet Corporate Documents, the execution,
delivery and performance of this Agreement, the AdNet Pledge Documents and the
consummation of the transaction contemplated herein and authorized all of the
necessary and proper action to enable AdNet to
comply with the terms of the Agreement.
(e) On
or before the Closing Date, there shall only be the AdNet Shares outstanding,
all of which shall have been duly transferred to China Broadband Cayman at
Closing by delivery of the same to the Trustee. Additionally, there
shall be no warrants, options, notes, or other securities or convertible
securities outstanding or any agreements to issue any of the foregoing and the
capitalization shall be as established in this Agreement.
(f) At
the Closing, all instruments and documents delivered to the Company pursuant to
provisions hereof shall be reasonably satisfactory to legal counsel for the
Company.
(k) The
AdNet Shares will be duly authorized, validly issued, nonassessable and fully
paid and validly duly and irrevocably transferred to China Broadband
Cayman.
(l) $100,000
consisting part of the Purchase Price for the Broadband Shares shall be paid to
the Company in accordance with Section 1.3,
above.
(m) The Internet Content Provider
(“ICP”), and all other licenses or permits
relating thereto of AdNet shall be in full force and effect with AdNet doing
business or licensed and equipped to do business in no less than 29 provinces in
the PRC and fully operating in no less than 2,000 cafés in the PRC at the
Closing Date.
(n) AdNet shall have received at least $200,000 (which amounts may encompass part of
the $100,000 paid as and for part of the purchase price paid in accordance with
Section
1.3 above) in additional
investment prior to closing, in addition to $100,000 in new investment
received prior to the date hereof, which additional may have been utilized to fund AdNet’s
ordinary and customary ongoing expenses and operations. AdNet may
also seek equity or convertible debt financing with terms reasonably acceptable
to the Company prior to the acquisition subject to the terms hereof;
and
(o) AdNet
shall not have amended its AdNet Corporate Documents prior to the
Closing.
4.2 Conditions Precedent to the
Obligations of AdNet, AdNet Executives and the AdNet Shareholders. All obligations of
AdNet, AdNet Executives and
the AdNet Shareholders under this Agreement or any other instrument or any
agreement contemplated hereby are subject to the fulfillment, prior to or as of
the Closing Date, as indicated below, of each of the following conditions, any
one of which may be waived at Closing by the Board of AdNet (or an executive
officer of AdNet acting on direction of the Board):
(a) The
representations and warranties by or on behalf of Parent of China Broadband
Cayman contained in this Agreement, or the AdNet Pledge Documents shall be true
in all material respects at and as of Closing Date as though such
representations and warranties were made at and as of such time.
(b) Parent
and China Broadband Cayman and their principals shall have performed and
complied in all material respects, with all covenants, agreements, and
conditions set forth in, and shall have executed and delivered all documents
required by this Agreement to be performed or complied with or executed and
delivered by it prior to or at the Closing, including, without limitation, of
the Parent and China Broadband Cayman set forth in Section 5 of this
Agreement.
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(c) On
the Closing Date, an executive officer of only Parent shall have
delivered to AdNet a certificate, duly executed by such respective Person and
certifying that to the best of such Person’s knowledge and belief, the
representations and warranties of the Parent, are true and correct in all
material respects.
(d) On
or before the Closing, the Board of Directors of Parent shall have approved, in
accordance with Nevada law and its By-laws, the execution, delivery and
performance of this Agreement, the AdNet Pledge Documents, the issuance of the
Broadband Shares and the consummation of the transaction contemplated herein and
authorized all of the necessary and proper action to enable Parent to comply
with the terms of the Agreement.
(e) On
the Closing Date, the capitalization of Parent shall be as set forth in Section 3.3, and the
Broadband Shares shall represent 15% of the Parent Fully-Diluted Common
Stock.
(f) At
the Closing, all instruments and documents delivered to AdNet and the AdNet
Shareholders pursuant to provisions hereof shall be reasonably satisfactory to
legal counsel for AdNet and the AdNet Shareholders.
(g) The
Broadband Shares will be duly authorized, validly issued, nonassessable and
fully paid and validly, duly and irrevocably issued to the AdNet Shareholders
under Nevada law; and
(h) Xx. Xxxxxxxxx
Xx shall have been appointed by the Parent Board, to the Board of the
Parent.
SECTION
5.
COVENANTS
5.1 Corporate Examinations and
Investigations. Prior to the Closing Date, the parties
acknowledge that they have been entitled, through their employees and
representatives, to make such investigation of the assets, properties, business
and operations, books, records and financial condition of the other as they each
may reasonably require. No investigations, by a party hereto shall,
however, diminish or waive any of the representations, warranties, covenants or
agreements of the party under this Agreement.
5.2 Further
Assurances. The Parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or
obtain the fulfillment of the conditions to the Closing, including, without
limitation, the execution and delivery of any documents or other papers, the
execution and delivery of which are necessary or appropriate to the Closing.
Specifically and without limitation, AdNet, AdNet Executives and AdNet
Shareholders shall also take all commercially reasonable steps necessary after
closing, so as to facilitate the outright transfer of all AdNet Shares out of
trust under the AdNet Pledge Documents, so as to be directly held by the Company
or WFOE set up for such purposes. AdNet, AdNet Executives and AdNet Shareholders
acknowledge and understand that the sole purpose of the AdNet Pledge Documents
is to ultimately facilitate such transfer and further covenant that no Party may
repay or cause any party to repay or discharge the AdNet Loan in avoidance
thereof.
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5.3 Confidentiality. In
the event the transactions contemplated by this Agreement are not consummated,
Parent, WFOE and its principals and affiliates, the AdNet Shareholders and the Parent Principal
Executive Officer agree to keep confidential any information disclosed to one
another in connection therewith for a period of two (2) years from the date
hereof and not to unlawfully exploit such information; provided, however, such
obligation shall not apply to information which:
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(i)
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at
the time of the disclosure was public
knowledge;
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(ii)
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is
required to be disclosed publicly pursuant to any applicable federal or
state securities laws;
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(iii)
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after
the time of disclosure becomes public knowledge (except due to the action
of the receiving party);
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(iv)
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the
receiving party had within its possession at the time of disclosure;
or
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(v) is
ordered disclosed by a court of proper jurisdiction.
5.4 Stock
Certificates. At the Closing, the AdNet Shareholders shall
have delivered the certificates representing the AdNet Shares duly endorsed (or
with executed stock powers) so as to make Parent the sole owner
thereof. At such Closing, Parent shall issue to each of the AdNet
Shareholders the Broadband Shares in the name(s) of such Persons as
designated by each Broadband Shareholder.
5.5 Carrying Costs of AdNet To
be Debited to AdNet and Repaid to Parent. The Parties
acknowledge and recognize the costs incurred by the Company relating to this
transaction as well as, without limitation, all ongoing legal, professional,
accounting, auditing, recordkeeping, compliance and other administrative matters
conducted by Parent or China Broadband Cayman whether relating to AdNet, its
financing activities, or the Company’s and Parent’s SEC Reporting obligations
and listing requirements (including, without limitation, the cost of issuing or
administering any 144 resale opinions and transfer agent fees on behalf of to
the AdNet Shareholders related thereto) and compliance or
otherwise. AdNet hereby covenants and agrees that, all such costs and
any other future costs, loans or disbursements to or on behalf of AdNet
(collectively, the “AdNet
Debts”), shall be debited to AdNet and repaid to Parent
quarterly. In addition, AdNet shall make dividend payments and
distributions of earnings to the Company from time to time as determined by the
Parent board of directors.
5.6 Boards of Directors and
Officers. At
the Closing Date and for a minimum of two years thereafter, the Company will
make all commercially reasonable best efforts to appoint and maintain Xx.
Xxxxxxxxx Xx to the Board of the Parent (e.g. with no requirement for
re-appointment or nomination after the two year anniversary following the
Closing Date). In the event she is unable to continue her duties for
any reason during such two year period following Closing, the former AdNet
Shareholders receiving a majority of the Broadband Shares issued at the Closing
shall have the right, but not the obligation, to appoint or remove a designee to
the Board of directors of the Parent for the remainder of such term, which
designees shall be reasonably acceptable to the majority of the remaining Board
members. Within 30 days after closing, and
presuming such person has faithfully executed and continues to faithfully
execute his duties under the AdNet Pledge Documents, Xx. Xxxx Yingqi (nee Xxxxxxx Xxxx)
shall be appointed as new COO/CFO of Parent.
5.7 Required Audits and Form 8-K
Current Report. Parent shall cause the Form 8-K Current Report
relating to the Closing to be filed with the SEC not later than four (4)
Business Days after the Closing Date. The final preparation of such report along
with receipt of completed consolidated financial statements of Parent and China
Broadband Cayman and their respective subsidiaries shall be
completed. In connection with the foregoing, the Parties shall
reasonably assist and cooperate with Parent and China Broadband Cayman and its
subsidiaries in complying with the covenants and conditions set forth in this
Section
5.7.
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5.8 Expenses. It is
understood and agreed that following the execution of this Agreement, any and
all expenses with respect to any filings, documentation and related matters with
respect to the consummation of the transactions contemplated hereby shall be the
sole responsibility of China Broadband Cayman, and neither Parent nor China
BroadBand Cayman or AdNet after the Closing shall be responsible for any such
expenses or fees associated with such filings; provided,
however, that Parent and China Broadband Cayman shall fully cooperate and
execute all required documents as indicated.
SECTION
6.
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES
6.1 Notwithstanding
any right of either party to investigate the affairs of the other party and its
Shareholders, each party has the right to rely fully upon representations,
warranties, covenants and agreements of the other party and its shareholders
contained in this Agreement or in any document delivered to one by the other or
any of their representatives, in connection with the transactions contemplated
by this Agreement. All such representations, warranties, covenants
and agreements shall survive the execution and delivery hereof and the closing
hereunder for eighteen (18) months following the Closing.
SECTION
7.
INDEMNIFICATION; DISPUTE
RESOLUTION; NON-COMPETITION
7.1 Indemnification by AdNet
Shareholders.
(a) From
and after the Closing, the AdNet Shareholders shall, severally but not jointly,
indemnify and hold harmless the Company, and their Affiliates, directors,
officers and employees (the “Parent Indemnified Parties”)
from and against any and all direct and actual damages finally awarded arising
out of, resulting from or in any way related to:
(i) the
failure of any of such indemnifying party’s representations and warranties
contained herein to be true as of the date made, or
(ii) the
failure to perform or satisfy, when due, any of the covenants and agreements
made by such indemnifying party in this Agreement.
(b) Notwithstanding
the foregoing, the indemnification obligations of the AdNet Shareholders under
Section 7.1(a) above shall, as to each individual AdNet Shareholder other than
the AdNet Executives be limited to the proportion of the Damages which equals
such AdNet Shareholder’s (but not the AdNet Executives’) pro rata ownership of
AdNet on the Closing Date; and be limited to the amount which equals the value
of the Broadband Shares issued to such AdNet Shareholder at the Closing based on
the closing trading price on the Closing Date of Parent Common Stock on NASDAQ
or on the Bulletin Board.
7.2 Indemnification by the
Company.
(a) From
and after the Closing, Parent, and China Broadband Cayman shall, jointly and
severally, indemnify and hold harmless the AdNet Shareholders and their
Affiliates, directors, officers and employees from and against any and all
direct and actual Damages finally awarded arising out of, resulting from or in
any way related to:
(i) the
failure of any of Parent, WFOE or China Broadband Cayman’s representations and
warranties contained herein to be true as of the date made, or
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(ii) the
failure to perform or satisfy, when due, any of the covenants and agreements
made by Parent, WFOE or China Broadband Cayman in this
Agreement or in any other document or certificate delivered by Parent, WFOE or
China Broadband Cayman at the Closing pursuant hereto.
7.3 (a) Confidentiality and
Non-Compete. In order to induce the Company to enter into this
Agreement and to consummate the transactions contemplated hereby, AdNet and each
AdNet Executive hereby acknowledges that he or she is a beneficiary of the
Broadband Shares and this Agreement, and the AdNet Shareholders hereby jointly
and severally covenants and agrees as follows:
(i) Neither
the AdNet Executives, nor any of their Affiliates shall for the longer of a
period of (A) five (5) years from and after the Closing Date (unless a longer
period is agreed to in writing pursuant to an employment or similar agreement or
otherwise waived in writing as to any Person), or (B) if such AdNet Executive is
employed by AdNet or the Company (or actively performing services for AdNet or
the Company though a consulting or similar arrangement) after closing then so
long as they are so employed plus three (3) years thereafter: (1) directly or
indirectly acquire or own in any manner any interest in any person, firm,
partnership, corporation, association or other entity which engages or plans to
engage in the providing content specific media or advertisement to internet café
users (the "Business")
anywhere in the PRC where AdNet is licensed at the time of Closing regardless of
whether it operates in cafes in such jurisdictions (the "Territory"); (2) be employed
by or serve as an employee, agent, officer, director of, or as a consultant to,
any person, firm, partnership, corporation, association or other entity which
competes or plans to compete in any way with the Business; (3) utilize her or
his special knowledge of the Business and her or his relationships with
customers, suppliers and others to compete with the Business; provided,
however, that nothing herein shall be deemed to prevent the AdNet
Executives from acquiring through market purchases and owning, solely as an
investment, less than five (5%) percent in the aggregate of the equity
securities of any class of any issuer whose shares are registered under §12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, and are listed or
admitted for trading on any United States national securities exchange or are
quoted on the National Association of Securities Dealers Automated Quotation
System, or any similar system of automated dissemination of quotations of
securities prices in common use.
Each of the AdNet Executives
acknowledges and agrees that the covenants provided for in this Section 7.3(a)
are reasonable and necessary in terms of time, area and line of business to
protect the Company's (including AdNet's) good will and trade
secrets. Each AdNet Executive further acknowledges and agrees that
such covenants are reasonable and necessary in terms of time, area and line of
business to protect the legitimate business interests of each of Parent, the
Company and AdNet, which include their interests in protecting their (x)
valuable confidential business information, (y) substantial relationships with
cafes and clients, and (z) customer goodwill associated with the ongoing
Business. The AdNet Executives expressly authorizes the enforcement
of the covenants provided for in this Section 7.4(a) by (A) Parent, China
Broadband Cayman or WFOE, (B) AdNet, and (C) any of their successors in interest
or successors or assignees of the Business. To the extent that the
covenants provided for in this Section may later be deemed by a court to be too
broad to be enforced with respect to its duration or with respect to any
particular activity or geographic area, the court making such determination
shall have the power to reduce the duration or scope of the provision, and to
add or delete specific words or phrases to or from the provision. The
provision as modified shall then be enforced.
(ii) The
AdNet Executives shall not for a period of five (5) years from the Closing Date,
directly or indirectly, for themselves or for any other person, firm,
corporation, partnership, association or other entity call on or solicit any of
the actual or targeted prospective customers or clients of the Business, nor
shall the AdNet Shareholders make known the names and addresses of such
customers or any information relating in any manner to the
Business.
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(iii) The
AdNet Shareholders shall not at any time, communicate, use to the detriment of
the Company or AdNet, or for the benefit of any other Person or Persons, or
misuse in any way, any Confidential Information pertaining to the
Business. Any confidential information or data now known or hereafter
acquired by any AdNet Shareholders with respect to the Business shall be deemed
a valuable, special and unique asset of the Company and AdNet and is received by
the AdNet Shareholder in confidence and as a fiduciary.
(b) Injunction. It
is recognized and hereby acknowledged by the parties hereto that a breach or
violation by any member of the AdNet Shareholder Group of any or all of the
covenants and agreements contained in this Section 7.3 may cause irreparable
harm and damage to the Company and AdNet in a monetary amount which may be
virtually impossible to ascertain. As a result, the AdNet
Shareholders recognizes and hereby acknowledges that the Company and/or AdNet
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any breach or violation of any or all of the covenants
and agreements contained in this Section 7.3 by the Adnet Principal Shareholders
Group and/or their associates, Affiliates, partners or agents, either directly
or indirectly, and that such right to injunction shall be cumulative and in
addition to whatever other rights or remedies the Company or AdNet may possess
hereunder, at law or in equity. Nothing contained in this Section 7.3
shall be construed to prevent the Company or AdNet from seeking and recovering
from the such person damages sustained by it as a result of any breach or
violation of any of the covenants or agreements contained herein.
7.3 Resolution of
Disputes. Any
dispute arising under this Agreement which cannot be resolved among the Parties
shall be submitted to a state or federal court located in New York, in the
County of New York, in the Federal or State courts residing in such
jurisdiction.
7.4 Delinguent Filing of SEC
Reports. In the event that at any time prior to the one year
anniversary of the Closing, the Parent does not file any SEC Report that it is
required to file, and such failure results in the actual inability of AdNet
Shareholders to utilize the resale safe harbor provisions of Rule 144 for 30
days or greater, then, for each 30 day period following the last time where such
SEC Report could be filed and deemed timely, such non-filed SEC Reports (each, a
“Delinquent Report” and
such event referred to hereing as a “Reporting Delinquency”) is not
filed, the Parent shall issue 67,777 Additional Shares to the AdNet
Shareholders, up to an aggregate maximum of 677,777 Additional
Shares. Notwithstanding anything herein to the contrary, any
inability to file SEC Reports directly caused by an act of omission on the part
of AdNet, AdNet Executives or AdNet Shareholders, such as, without limitation,
any act or failure that will prevent AdNet from rendering proper, additional
financial information under US GAAP and GAAS, shall not render any unfiled SEC
Reports as Delinquent Reports and to issue any Additional Shares.
Notwithstanding anything herein to the contrary, no Delinquent Report, Reporting
Delinquency or other breach hereof shall result in any claim, counterclaim or
set off by AdNet, AdNet Executives or AdNet Shareholders, with respect to the
AdNet Shares acquired by Parent hereby whether for lost profits, charges or
otherwise. All AdNet Shares issued, if any, shall be deemed
restricted and duly issued and fully paid for on the date that such Shares were
required to be distributed (i.e. end of each 30 day period until the earlier of
such time that (i) all Additional Shares are issued or (ii) the Parent cures the
Reporting Delinquency. For the avoidance of doubt, the number of
Additional Shares that may be issued may not be increased for subsequent
occurrences of a Reporting Delinquency.
19
SECTION
8.
MISCELLANEOUS
8.1 Waivers. The
waiver of a breach of this Agreement or the failure of any party hereto to
exercise any right under this Agreement shall in no way constitute waiver as to
future breach whether similar or dissimilar in nature or as to the exercise of
any further right under this Agreement.
8.2 Amendment. This
Agreement may be amended or modified only by an instrument of equal formality
signed by the parties or the duly authorized representatives of the respective
parties.
8.3 Assignment. This
Agreement is not assignable except by operation of law.
8.4 Notice. Until
otherwise specified in writing, the mailing addresses and fax numbers of the
parties of this Agreement shall be as follows:
To
Parent or any of the Buyers prior to or after Closing :
|
||
0000
Xxxxx Xxxxxx, 0xx
Xxxxx
|
||
Xxxxxxx,
Xxxxxxxx 00000 XXX
|
||
By
fax and Email only to:
|
||
fax:
(000) 000-0000
|
||
email:
|
||
with
a copy to:
|
|
Xxxxxxx
Xxxx, Esq.
|
Xxxxxxx
Xxxx, LLP
|
||
0000
Xxxxxxxx, 00xx
Xxxxx
|
||
Xxx
Xxxx, XX 00000
|
||
Phone:
(000) 000-0000
|
||
Facsimile:
(000) 000-0000
|
||
email: xxxxx@xxxxxxxxxxx.xxx
|
||
To
AdNet at any time before or after Closing:
|
||
|
Xxxxxxxx
Xxxx, Esq.
|
|
19th
Floor, Landmark Tower 2 ,
|
||
0
Xxxxx Xxxxxxxxxxx Xxxx,
|
||
Xxxxxxx
000000, Xxxxxxx Xxxxxxxx of China
|
||
Phone:
00-00-00000000-000
|
||
Email:
xxx@xxxxxxxxx.xxx
|
||
with
a copy to:
|
|
Xxxxxxx
Xxxx, Esq.
|
Xxxxxxx
Xxxx, LLP
|
||
0000
Xxxxxxxx, 00xx
Xxxxx
|
||
Xxx
Xxxx, XX 00000
|
||
Phone:
(000) 000-0000
|
||
Facsimile:
(000) 000-0000
|
||
email: xxxxx@xxxxxxxxxxx.xxx
|
20
To any of the AdNet Shareholders at any
time, to the address for such person as set forth opposite their names on Schedule
A hereto, with a copy to the Company and its counsel and AdNet and its
counsel as set forth above and to the following as counsel to a certain AdNet
Shareholder:
|
|
Xxxxxxx
X. Xxxxxx, Esq.
|
000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
|
||
Xxxxxxxxx,
XX 00000-0000
|
||
Phone:
(000) 000-0000
|
||
Fax:
(000) 000-0000
|
||
Email:
XXXXXXXX@xxxxxxxxxxx.xxx
|
Any
notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor, or by fax or e-mail with a receipt of transmission
thereof.
8.5 Governing
Law. Except as may be required under PRC or Nevada law,
this Agreement shall
be construed, and the legal relations between the parties determined, in
accordance with the laws of the State of New York, thereby precluding any choice
of law rules which may direct the application of the laws of any other
jurisdiction. THE PARTIES HERETO WAIVE A RIGHT TO TRIAL BY
JURY.
8.6 Publicity. No
publicity release or announcement concerning this Agreement or the transactions
contemplated hereby shall be issued by either party hereto at any time from the
signing hereof without advance approval in writing of the form and substance by
the other party.
8.7 Entire
Agreement. This Agreement (including the Schedules to be
attached hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the transactions contemplated
hereby, and supersedes all prior agreements, written or oral, with respect
hereof.
8.8 Headings. The
headings in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
8.9 Severability of
Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or provision of this
Agreement shall in no way affect the validity or enforcement of any other
provision or any part thereof.
8.10 Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed, shall constitute an original copy hereof, but all of which together
shall consider but one and the same document.
8.11 Binding
Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors,
successors
and assigns.
8.12 Press
Releases. The parties will mutually agree as to the wording
and timing of any informational releases concerning this transaction prior to
and through Closing.
[Signature
Pages Follow]
21
[COUNTERPART SIGNATURE PAGE OF CHINA
BROADBAND, INC. AND
ADNET, TO SHARE ISSUANCE AGREEMENT
DATED AS OF APRIL 7, 2009RELATING TO SALE OF ADNET TO CHINA BROADBAND,
INC.]
IN WITNESS WHEREOF, the
parties have executed this Agreement on the date first above
written.
ATTEST:
|
CHINA
BROADBAND, INC.
|
||
_______________________
|
By:
|
|
|
___________,
Secretary
|
Name:
|
||
Title:
|
|
CHINA
BROADBAND, INC.
|
||
|
By:
|
|
|
|
Name:
|
||
Title:
|
ATTEST:
______________________
Secretary
|
Wanshi
Wangjing Media Technologies (Beijing) Co., Ltd.
(北京万视网景传媒科技有限公司)
|
||
|
By:
|
|
|
|
Name:
|
||
Title:
|
[Signature Page
Continues]
22
[COUNTERPART
SIGNATURE PAGE OF ADNET SHAREHOLDERS, TO SHARE ISSUANCE AGREEMENT DATED AS OF
APRIL 7, 2009 RELATING TO SALE OF ADNET TO CHINA BROADBAND, INC.]
ADNET
SHAREHOLDERS:
______________________________________
Print
Name or Entity
______________________________________
Signature
______________________________________
Title
(If signing on behalf of
entity)
|
23
EXHIBITS
Exhibit
A
|
AdNet
Pledge Documents between China Broadband, Ltd., AdNet and AdNet
Shareholders
|
A-1 Loan
Agreement
A-2 Equity
Option Agreement
A-3 Trustee
Appointment Letter
A-4 Power
of Attorney
|
SCHEDULES
Schedule
A
|
Schedule
of AdNet Shareholders
|
Schedule
2.6.
|
Material
Adverse Changes of AdNet
|
Schedule
2.11
|
Significant
contracts of AdNet (List)
|
Schedule
2.13
|
Real
Property Owned and Leases of AdNet
|
Schedule
3.3
|
Other
Parent Common Stock
|
24
SCHEDULE
A
AdNet
Shareholders
Name
|
Share
percentages
|
of
Shareholder
|
of
ADNET
|
Roche
Related Parties
|
|
Agnone
Trust: 72.5%
|
25.38%
|
OLM
Holdings: 10%
|
3.50%
|
Xxx
Xxxxxxxx: 10%
|
3.50%
|
Xxxx
Xxxxxx: 2.5%
|
0.88%
|
Xxxxxxx
Xxxx: 2.5%
|
0.88%
|
Xxxxxxxx
Xxxxxxx: 2.5%
|
0.88%
|
Mercantile
Capital Partners II, L.P.
0000
Xxx Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxx,
XX 00000
|
17.50%
|
Paragon
Ranch,Inc.
|
10.00%
|
0000
XXX Xxxxxxx, Xxxxx 0000
|
|
Xxxxxxxxx
Xxxxxxx, Xx 00000
|
|
Xxxxxxxxx
Xx
|
12.00%
|
Xxxxxxx
Xxxx
|
8.00%
|
|
EXHIBIT
A
|
|
AdNet
Pledge Documents
|
A-1 Loan
Agreement
A-2 Equity
Option Agreement
A-3 Trustee
Appointment Letter
A-4 Power
of Attorney
25
|
Schedule
2.6
|
|
Material
Adverse Changes of AdNet
|
|
None.
|
26
|
Schedule
2.11
|
|
Significant
contracts of AdNet
|
1.
|
Streaming
Media advertisement cooperation Agreement between Click to See and
AdNet
|
2.
|
Film
and Video for Internet café cooperation Agreement between Wuhan Eyoo and
AdNet
|
3.
|
Advertising
platform cooperation Agreement between BBVOD and
AdNet
|
4.
|
Retainer
service agreement between EAST ASSOCIATES Law Firm and
AdNet
|
5.
|
Information
Network Transmission Right License agreement between Shanghai Mega Joy and
AdNet
|
6.
|
Server
hosting and bandwidth leasing contract for Tangshan
IDC
|
7.
|
Server
hosting and bandwidth leasing contract for Wuhan and Yantai
IDC
|
8.
|
Server
hosting and bandwidth leasing contract for Wenzhou
IDC
|
9.
|
Server
hosting and bandwidth leasing contract for Yunnan
IDC
|
10.
|
Email
server hosting and service contract
|
11.
|
CDN
service contract between ChinaNetCenter and
AdNet
|
27
Schedule
2.13
Real
Property Owned and Leases of AdNet
28
Schedule
3.3
Other Parent Common Stock
29