AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF MERGER, CONVERSION AND SHARE EXCHANGE
Exhibit
2.4
AMENDMENT
NO. 3 TO AGREEMENT AND PLAN OF MERGER, CONVERSION AND SHARE
EXCHANGE
This
AMENDMENT NO. 3 (this “Amendment”),
dated as of June 1, 2010, to that certain Agreement and Plan of Merger,
Conversion and Share Exchange (the “Merger
Agreement”), dated as of September 5, 2008, as amended by Amendment No.
1, dated as of January 6, 2009, and Amendment No. 2, dated as of June 16, 2009,
is made by and among FUNTALK CHINA HOLDINGS LIMITED, an exempted limited company
incorporated in the Cayman Islands (the “Company”
or “MK
Cayman”), PYPO DIGITAL
COMPANY LIMITED, an exempted limited company incorporated in the Cayman
Islands and a wholly-owned subsidiary of the Company (“Pypo
Cayman”), PYPO HOLDINGS
(HK) COMPANY LIMITED, a company incorporated in Hong Kong and a wholly owned subsidiary of Pypo Cayman (“Pypo
HK”), BEIJING PYPO TECHNOLOGY GROUP COMPANY
LIMITED, a limited
liability company
established in the PRC and an indirect
wholly owned subsidiary of Pypo Cayman
(“Pypo
PRC), ARCH DIGITAL HOLDINGS LIMITED, a company incorporated in the
British Virgin Islands (“ARCH
BVI”), CAPITAL ALLY INVESTMENTS LIMITED, a company incorporated in the
British Virgin Islands (“Capital
Ally”), XXXXXXX XXXXX and XXXXXXX X. XXXXXXXXX III (collectively as the
“Parties”). XXXXXXX
XXXXX and XXXXXXX X. XXXXXXXXX III are collectively referred to herein as the
“Middle
Kingdom Representatives”. Arch BVI and Capital Ally are collectively
referred to herein as the “Pypo
Shareholders.” Capitalized terms used herein that are
not otherwise defined
herein shall have the meanings ascribed to them in the Merger
Agreement.
RECITALS
A. Middle
Kingdom Alliance Corp., a corporation incorporated in the State of Delaware, USA
(“Middle
Kingdom”), MK Arizona Corp., a corporation incorporated in the State of
Arizona, USA and a wholly-owned subsidiary of Middle Kingdom (“MK
Arizona”), Xxxx Xxxxxx, Xxxx XX, Xxxx XXX, XXXX BVI and Capital Ally have
heretofore executed and entered into the Merger Agreement;
B. On
July 9, 2009, Middle Kingdom merged into MK Arizona, and MK Arizona subsequently
converted and continued its corporate existence from Arizona to the Cayman
Islands and changed its name to the name of the Company;
C. Pursuant
to Section 16.2 of the Merger Agreement, the parties thereto may amend the
Merger Agreement by an instrument in writing signed by each of them;
and
D. All
acts and things necessary to make this Amendment a valid agreement, enforceable
according to its terms, have been done and performed, and the execution and
delivery of this Amendment by the Parties have been in all respects duly
authorized by the Parties.
NOW, THEREFORE, in consideration of the
foregoing and the representations, warranties and mutual agreements herein
contained, and intending to be legally bound herein, the Parties hereto agree as
follows:
1. Section
12.4 (a) of the Merger Agreement is amended by replacing it in its entirety with
the following:
“(a) (1)
For a period commencing on the Closing Date and ending not sooner than March 31,
2011 (or March 31, 2012 if the Earn-Out Shares applicable to FY2011 have not
been issued and delivered pursuant to Section 5.2(b)(vi) hereof), the Combined
Board will consist of up to eight (8) persons. (2) For a period commencing from
the Closing Date until the next annual meeting of stockholders of MK Cayman, or
until each director’s successor is elected and takes office, the Combined Board
shall consist of: (i) one (1) person nominated by the Middle Kingdom
Representatives (with such person to have the right to designate an alternate)
and (ii) up to seven (7) persons nominated by the Pypo Shareholders (at least
half of which shall be “independent directors” as such term is defined in the
NASDAQ Marketplace Rule (the “Independent Directors”). Provided, however, that,
in the case of clause (1) and clause (2)(ii) above and in the case of clause (1)
and clause (2)(ii) above only, such clauses may be amended, modified or
terminated by MK Cayman after the Closing Date with the consent of the majority
of the Independent Directors then serving on the board of the directors of MK
Cayman.”
2. Except as
expressly set forth herein, this Amendment shall not by implication or otherwise
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Merger Agreement, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect.
3. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument.
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IN
WITNESS WHEREOF, the Parties hereto have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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FUNTALK
CHINA HOLDINGS LIMITED
By:
/s/ Xxx
Xxxxx
Name:
Xxx Xxxxx
Title:
Chairman of the Board of Directors
Xxxxx’
An XingRong Center
Xx.
0 XxxXxxXxx Xxxxxx
XxXxxxx
Xxxxxxxx
Xxxxxxx,
PRC
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Signature
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PYPO
DIGITAL COMPANY LIMITED
By:
/s/ Xxx
Xxxxx
Name:
Xxx Xxxxx
Title:
Director
Cricket
Square, Xxxxxxxx Drive
XX
Xxx 0000
Xxxxx
Xxxxxx, XX0-0000
Cayman
Islands
BEIJING
PYPO TECHNOLOGY GROUP COMPANY LIMITED
By:
/s/ Xxx
Xxxxx
Name:
Xxx Xxxxx
Title:
Chairman of the Board of Directors
South
3/F
Xxxxx’
An XingRong Center
Xx.
0 XxxXxxXxx Xxxxxx
XxXxxxx
Xxxxxxxx
Xxxxxxx,
PRC
PYPO
HOLDINGS (HK) COMPANY LIMITED
By:
/s/ Xxx
Xxxxx
Name:
Xxx Xxxxx
Title:
Director
48/F
Bank
of China Tower
0
Xxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
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ARCH
DIGITAL HOLDINGS LIMITED
By:
/s/ Xxxxxxx
Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Director
x/x
XXX Xxxxxxxx (XX) Xxxxxxx
00/X,
Xx. Xxxx’s Xxxxxxxx
00
Xxxxxx Xxxx
Xxxxxxx,
Xxxx Xxxx
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CAPITAL
ALLY INVESTMENTS LIMITED
By:
/s/ Xxx
Xxxxx
Name:
Xxx Xxxxx
Title:
Director
48/F,
Bank of China Tower
0
Xxxxxx Xxxx
Xxxxxxx,
Xxxx Xxxx
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XXXXXXX
XXXXX
By:
/s/ Xxxxxxx
Xxxxx
Xxxx
00000
00xx
Xxxxx
Xxxxx
Xxxxxx
1168
Nanjing Road West
Shanghai,
PRC
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XXXXXXX
X. XXXXXXXXX III
By:
/s/ Xxxxxxx X.
Xxxxxxxxx
III
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX
XXX
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