AMENDMENT NO. 3 TO THE SECURITIES PURCHASE AGREEMENT
Exhibit
10.10
AMENDMENT
NO. 3 TO THE SECURITIES PURCHASE AGREEMENT
This
AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT (this “Amendment”) is made as of
October 14, 2009 (the “Effective Date”), by and among VIASPACE Inc., a Nevada
corporation (“Parent”), VIASPACE Green Energy Inc., a British Virgin Islands
international business company and a wholly-owned subsidiary of Parent
(“Acquirer”), Sung Xxxxx Xxxxx, an individual (“Shareholder”), and China Gate
Technology Co., Ltd., a Brunei Darussalam company (“Licensor”), with
respect to the following facts:
A.
The parties entered into that certain Securities Purchase Agreement, dated
as of October 21, 2008 (as amended by that Amendment No. 1 to Securities
Purchase Agreement dated on or about June 17, 2009 and that Amendment No. 2 to
Securities Purchase Agreement dated on or about August 21, 2009, the
“Agreement”), pursuant to which, among other things, Acquirer acquired from
Shareholder a controlling interest in Inter-Pacific Arts Corp., a British Virgin
Islands international business company (“IPA BVI”) in exchange for its shares
and shares of the Parent. Capitalized terms not defined herein shall
have the meanings given such terms in the Agreement.
B.
The parties desire to amend the Agreement in certain respects, all
as hereinafter provided.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree to amend the Agreement as follows:
1. Non-competition
Clause.
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(a)
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Section
10.2 of the Agreement is hereby amended and restated to read in full as
follows:
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10.3 Non-Competition. In
the event that the Second Closing fails to occur, none of the VIASPACE Entities
or their affiliates (except Acquirer, including their officers Messrs. Kukkonen
and Muzi to the extent each work for Acquirer), or any of their directors or
officers, shall engage in the Grass Business for a period of three years after
the First Closing Date.
2. Acquirer
Shares.
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(a)
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Section
10.2 of the Agreement is hereby amended and restated to read in full as
follows:
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10.2 Shareholder Rights Upon
Failure to Close. In the event that the Second Closing fails
to occur and Parent’s closing conditions to the Second Closing as set forth in
Sections 7.1 through 7.7, and 7.9 have been satisfied, then (1) Shareholder
and/or his designees shall retain the Acquirer Shares, (2) Parent shall transfer
all shares of Acquirer common stock it holds to Shareholder, (3) Shareholder
will deliver the remaining 30% equity interest of IPA BVI to Acquirer, such that
Acquirer shall receive all equity securities of IPA BVI, and (4) if Acquirer’s
common stock is not listed on a Trading Market as of the Second Closing
Deadline, Shareholder shall also receive such number of shares of Viaspace
common stock so that Shareholder shall own a majority of the outstanding shares
of Viaspace common stock as of the date of issuance.
Notwithstanding
any other provisions of this Agreement, Shareholder and/or his designees shall
retain the Acquirer Shares, irrespective of whether the Second Closing occurs or
does not occur or whether Parent’s closing conditions are satisfied or
not.
3. Grass
License. The parties hereby
acknowledge and agree that Licensor has executed the Grass License and has
delivered the executed Grass License to IPA China. Any provisions in the
Agreement relating to Grass License or Grass Assignment are hereby amended in
order to reflect such execution and delivery of the Grass License, including
provisions requiring the Grass License or Grass Assignment to be executed or
delivered at or by the Second Closing, which are hereby
deleted.
4. Miscellaneous.
4.1 Effect of
Amendment. Except to the extent the Agreement is modified by
this Amendment, the remaining terms and conditions of the Agreement shall remain
unmodified and be in full force and effect. In the event of conflict
between the terms and conditions of the Agreement and the terms and conditions
of this Amendment, the terms and conditions of this Amendment shall
prevail.
4.2 Counterparts. This
Amendment may be executed in one or more counterparts, including facsimile
counterparts, each of which shall be deemed an original but all of which, taken
together, shall constitute the same Amendment.
4.3 Applicable
Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of California without regard
to conflicts of law principles.
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IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
| VIASPACE, INC. | |
| By: /s/
Xxxx Xxxxxxxx
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| Xxxx Xxxxxxxx | |
| Chief Executive Officer | |
| VIASPACE GREEN ENERGY, INC. | |
| By: /s/
Xxxx Xxxxxxxx
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| Xxxx Xxxxxxxx | |
| Chief Executive Officer | |
| SUNG XXXXX XXXXX | |
| By: /s/
Sung Xxxxx Xxxxx
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| CHINA GATE TECHNOLOGY CO., LTD. | |
| By: /s/
Xxxxxxx Wang
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| Xxxxxxx Xxxx | |
| Chief Executive Officer |
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