KBS INTERNATIONAL HOLDINGS INC. AMENDMENT NO. 1 TO THE INVESTOR MAKE GOOD SIDE LETTER AGREEMENT
Exhibit 10.32
KBS INTERNATIONAL HOLDINGS INC.
AMENDMENT NO. 1 TO THE INVESTOR MAKE GOOD SIDE LETTER AGREEMENT
THIS AMENDMENT NO. 1 (the “Amendment”) THE INVESTOR MAKE GOOD SIDE LETTER AGREEMENT (as defined below) is made as of October 13, 2011, by and among KBS International Holdings Inc. (f.k.a. “Bay Peak 1 Opportunity Corp.”, the “Company”), the undersigned investors of the Company and Xxxxx Xxxxxx, as the Investor Representative.
Capitalized but undefined terms herein shall have the meanings ascribed thereto in the Make Good Agreement (as defined below).
RECITALS
A. The Company completed a private placement (the “Private Placement”) with the Financing Investors in March 2011 and simultaneously, a share exchange (the “Share Exchange”) with the Controlling Stockholders in respect of such stockholders’ shares in Hongri International holdings Limited (“Hongri”), a British Virgin Islands company;
B. In connection with the Private Placement, the Company, the Controlling Stockholders, the Financing Investors, the Initial Investors and the Investors’ Representative entered into an Investor Make Good Side Letter Agreement dated on March 11, 2011 (the (“Make Good Agreement”), pursuant to which the Controlling Stockholders agreed to put in escrow up to 4,000,000 of the shares of Common Stock issued thereto in the Share Exchange in guaranty certain financial performance targets of the Company set forth in the Make Good Agreement;
C. As one of the financial performance targets of the Company set forth in the Make Good Agreement, Hongri’s Actual 2010 Net Income (“2010 Target”) exceeded $11,500,000; and
D. The undersigned deem it in their mutual interests to amend the Make Good Agreement to the effect that the Financial Investors and the Investors’ Representative agree to the release of certain escrow shares to the Controlling Stockholders upon the achievement of the 2010 Target.
NOW, THEREFORE, the parties to this Amendment hereby agree as follows:
1. Section 1(g) of the Make Good Agreement is hereby amended in its entirety as
follows with immediate effect:
“Notwithstanding the foregoing, if prior to December 31, 2011, the Company becomes listed on the Stock Exchange of Hong Kong Limited, the New York Stock Exchange (the “NYSE”), The NYSE Amex, the NASDAQ Global Select Market, or the NASDAQ Global Market (together, the “NASDAQ”) and has a minimum market capitalization of at least $175 million (based on the closing price of the Common Stock as listed on such an exchange), then no additional shares shall be issuable after the date of such event under Sections 1(a) through 1(e) and the Escrowed Shares remaining in the escrow account created pursuant to Section 1(f) shall be released to the Controlling Stockholders without any action required by the Investors’ Representative or the Investors. Notwithstanding anything to the contrary in the foregoing, in the event that the Company delivers the 2010 Audit to the Investors’ Representative prior to or on the date hereof showing that the 2010 Target has been achieved, an aggregate of 2,000,000 shares shall be released from the escrow account immediately to the Controlling Stockholders pro rata to their respect in interest in the total of 4,000,000 Escrow Shares, without any action required by the Investors’ Representative or the Investors and the shares remaining in the escrow account shall continue to be subject to, and remain releasable only upon the achievement of, the performance target set forth in Section 1(b)”.
2. Except as expressly modified herein, the Make Good Agreement, as amended, shall remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
Very truly yours,
KBS INTERNATIONAL HOLDINGS INC.
(F.K.A. BAY PEAK 1 OPPORTUNITY CORP.)
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Chief Executive Officer
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
CONTROLLING STOCKHOLDERS:
/s/ Chan Sun Keung
Printed Name: Chan Sun Keung
Address for Notice:
Xxxx 000 0/X, Xxxxx Xxx House
Xxxx Xxx Estate, Chai Wan, Hong Kong
Fax:
Email:
/s/ Xxxxxx So Wa
Printed Name: Xxxxxx So Wa
Address for Notice:
Xxxx 0000, Xxx Xxx Xxxxx, Xxx Xxxx Xxxxxx
Xxxx Xxxxx, N.T. Hong Kong
Fax:
Email:
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
INVESTORS’ REPRESENTATIVE:
/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Address for Notice:
0000 Xxx Xxx Xxxxx
Xxxxx Xxxxxxxxx, XX X0X 0X0
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxx.xx
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
FINANCING INVESTOR:
CHINA — GROUND FLOOR HOLDINGS, L.P.
By: Ground Floor Capital, LLC
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: _____________________________________
Address for Notice:
0000 X. 00xx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
Attention: Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
FINANCING INVESTOR:
CHINA — GROUND FLOOR HOLDINGS VI, L.P.
By: Ground Floor Capital II, LLC
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:
Address for Notice:
0000 X. 00xx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
Attention: Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
FINANCING INVESTOR:
CHINA CANADIAN OPPORTUNITY, L.P.
By: Ground Floor Capital (China), Inc.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: _______________________________________
Address for Notice:
0000 X. 00xx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
Attention: Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
FINANCING INVESTOR:
CHINA CANADIAN OPPORTUNITY VI, L.P.
By: Ground Floor Capital (China 88), Inc.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: _______________________________________
Address for Notice:
0000 X. 00xx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
Attention: Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
INITIAL INVESTOR:
KEMA MANAGEMENT, LTD.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: _______________________________________
Address for Notice:
0000 Xxx Xxx Xxxxx
Xxxxx Xxxxxxxxx, XX X0X 0X0
Telephone: 000-000-0000
Fax:
Email: xxxxxxxxxx@xxxx.xx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
Attention: Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Email: xxxxxxxx@xxxxxxxxxx.xxx
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
INITIAL INVESTOR:
/s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Individual
Address for Notice:
Telephone: 000-000-0000
Fax:
Email: xxxxx@xxxxxxxxxx.xxx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
c/o Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Email: xxxxxxxx@xxxxxxxxxxx.xxx
[Signature Page to Amendment No. 1 To Make Good Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
INITIAL INVESTOR:
XXXXXX CHILDREN IRREVOCABLE
TRUST, DATED MAY 25, 2010
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Trustee
Address for Notice:
00000 Xxxxx Xxxx Xxxx, Xxxxx #000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax:
Email: xxxxx@xxxxxxxxxx.xxx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
c/o Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Email: xxxxxxxx@xxxxxxxxxxx.xxx
[Signature Page to Amendment No. 1 To Make Good Agreement]
INITIAL INVESTOR:
BAY PEAK, LLC
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: President
Address for Notice:
000 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Telephone:
Fax:
Email: xxxx@xxxxxxx.xxx
With a copy to:
Xxxxxxx Law Firm, P.C., L.L.O.
c/o Xxxx Xxxxxxx
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Email: xxxxxxxx@xxxxxxxxxxx.xxx
[Signature Page to Amendment No. 1 To Make Good Agreement]
