Supplemental Agreement
Amendment No. 1 to Securities Purchase Agreement
Supplemental Agreement dated and effective as of September 27, 2001, among China
Development Industrial Bank Inc. (the "Seller"), the investors signatory hereto
(individually, a "Purchaser" and, collectively, the "Purchasers"), and Xxxxx &
XxXxxxxx (the Seller, Purchasers and Xxxxx & XxXxxxxx are, collectively, the
"Parties").
Whereas pursuant to the Securities Purchase Agreement among the Parties dated
September 7, 2001 (the "Agreement"), the Seller agreed to sell to the Purchasers
and the Purchasers severally agreed to purchase from the Seller the Shares (as
defined in the Agreement), subject to the terms of the Agreement.
Whereas the Parties now desire to amend certain provisions of the Agreement.
Now therefore, in consideration of the reduction of the floor price in relation
to the first tranche referred to in the Agreement, the Parties agree to be bound
by the amendments to the Agreement more fully set out below:
1. Capitalized terms not defined herein shall have their meanings set forth
in the Agreement.
2. Unless otherwise expressly amended herein, terms, conditions and
provisions of the Agreement shall remain in full force and effect.
3. The reference in Article 1.1 of the Agreement to ""Floor Price" means
$12.60 (subject to equitable adjustment in the event of stock splits,
stock combinations or similar events affecting the Common Stock prior to
the end of the measurement period utilized to calculate the Floor Price)."
is hereby amended to ""Floor Price" means $10.00 in relation to the first
tranche and $12.60 in relation to the second and third tranches (all of
which are subject to equitable adjustment in the event of stock splits,
stock combinations or similar events affecting the Common Stock prior to
the end of the measurement period utilized to calculate the Floor Price)."
4. The reference in Article 2.2(c) of the Agreement to "If the average of the
Closing Prices during the seventeen Trading Days immediately following
(but not including) the First Tranche Closing Date (the "First Tranche
Pricing Period") is greater than the Ceiling Price or less than the Floor
Price, then each Purchaser shall have the right (but not the obligation)
to purchase up to a number of First Tranche Shares equal to the product of
(1) 500,000 multiplied by (2) such Purchaser's First Tranche Percentage at
a purchase price per Share equal to the First Tranche Per Share Purchase
Price." is hereby amended to "If the average of the Closing Prices during
the seventeen Trading Days immediately following (but not including) the
First Tranche Closing Date (the "First Tranche Pricing Period") is less
than the Floor Price, then each Purchaser shall have the obligation to
purchase a number of First Tranche Shares equal to the product of (1)
250,000 multiplied by (2) such Purchaser's First Tranche Percentage at a
purchase price per Share equal to the First Tranche Per Share Purchase
Price, and shall in addition have the right (but not the obligation) to
purchase up to a number of First Tranche Shares equal to the product of
(1) 250,000 multiplied by (2) such Purchaser's First Tranche Percentage at
a purchase price per Share equal to the First Tranche Per Share Purchase
Price."
IN WITNESS WHEREOF, the Parties hereto have caused this Supplemental Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
CHINA DEVELOPMENT INDUSTRIAL BANK INC.
By: /s/ Xxxx Xxx
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Xxxx Xxx
Senior Executive Vice President
PINE RIDGE FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Attorney-in-Fact
VERTICAL VENTURES LLC
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Manager
XXXXX & XXXXXXXX
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Associate Partner
