FIRST AMENDMENT TO
Exhibit
10.8
FIRST
AMENDMENT TO
THIS FIRST AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (this “First
Amendment”) is made as of July 9, 2010, between China Broadband, Inc., a
Nevada corporation (the “Company”) and Xxxxx XxXxxxx
(including his successors and assigns, the “Investor”). Capitalized terms
not defined herein have the meanings assigned to them in the Securities Purchase
Agreement, as defined below.
WHEREAS, the Company and the
Investor are parties to that certain Securities Purchase Agreement dated as of
May 20, 2010 (the “Securities
Purchase Agreement”); and
WHEREAS, concurrently with the
Closing under the Securities Purchase Agreement, the Company and the Investor
desire to amend that Agreement as set forth herein;
NOW, THEREFORE, in consideration of, and
subject to, the mutual terms, conditions and other agreements set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound by the terms
and conditions hereof, the parties hereto hereby agree as follows:
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1.
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Other
Agreements. Section 9 of the Securities Purchase
Agreement is amended to add the
following:
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9.7 Formation of
Sinotop WFOE. As soon as reasonably
practicable after the Closing, the Company will cause the formation of Sinotop
WFOE.
9.8 Sinotop VIE
Agreements. Within ten (10) days after the issuance of a
business license for the Sinotop WFOE by the competent office of the PRC State
Administration of Industry and Commerce, the Company ensure the
following:
(a) Sinotop
HK, SinoTop Beijing, Sinotop WFOE and Xxxxx Xxx will execute and deliver to one
another a Termination, Assignment and Assumption Agreement in the form attached
as Exhibit A (the “Assignment
Agreement”);
(b) In
accordance with the Assignment Agreement, the Equity Pledge included as part of
the Sinotop VIE Agreements will be terminated, and the parties to the Assignment
Agreement will enter into a replacement Equity Pledge Agreement (the “New Equity
Pledge”), for the benefit of Sinotop WFOE, in the form attached to the
Assignment Agreement; and
(c) As
soon as practicable after the execution and delivery of the New Equity Pledge,
the parties will register that pledge with the competent office of the PRC State
Administration of Industry and Commerce and/or any other governmental authority
necessary to ensure the effectiveness and enforceability of the
pledge.
9.9 Segregated U.S.
Account. The Company shall hold
all funds of the Investor that the Company receives as consideration for the
Purchase Price in an account located in the United States and shall not further
fund, directly or indirectly, [Opco] until such time that
(a) the Sinotop WFOE has been duly organized under applicable law and (b) the
Company has received an opinion in respect of [Opco] from TranAsia Lawyers,
dated as of the date of the closing of the Sinotop Acquisition, in such form and
substance as agreed to by the Company and the Investor.
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2.
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Indemnification.
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2.1
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Section
12.8(a) of the Securities Purchase Agreement is hereby amended by adding
the following sentence immediately prior to the sentence of such
Section:
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“The
representations, warranties and covenants of the Company, and the Investor’s
right to indemnification with respect thereto, shall not be affected or deemed
waived by reason of any investigation made by or on behalf of the Investor
(including by any of his representatives) or by reason of the fact that the
Investor or any of his representatives knew or should have known that any such
representation or warranty is, was or might be inaccurate or by reason of the
Investor’s waiver of any condition set forth in Section 7.”
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2.2
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Section
12.8(a) of the Securities Purchase Agreement is hereby further amended by
adding the following sentence immediately after the last sentence of such
Section:
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“Notwithstanding
anything to the contrary contained in this Agreement, the Company agrees to
defend, indemnify and hold harmless each Investor and its Affiliates and their
respective directors, officers, employees and agents from and against any and
all Losses to which such Person may become subject that relate to any of the
matters disclosed on Schedule 5.12, and shall reimburse any such Person for all
such amounts as they are incurred by such Person.”
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3.
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Expenses. Section
12.13 of the Securities Purchase Agreement is hereby amended by deleting
the first sentence of such Section in its entirety and replacing such
sentence with the following:
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“The
Company shall pay all costs and expenses, including the fees and disbursements
of any counsel and accountants retained by the Investor, incurred by the
Investor in connection with the preparation, execution, delivery and performance
of the Series A Transaction Documents and the transactions contemplated thereby,
whether or not such transactions are consummated up to a maximum amount, or cap,
of $50,000”.
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4.
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Certain
Exhibits. Exhibit B-1 (Loan Cancellation Agreement) to
the Securities Purchase Agreement is herby removed in its entirety and
replaced with the Loan Cancellation and Note Assignment Agreement, which
is attached hereto as Annex
1,
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5.
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Amendment. This
First Amendment is intended to be in full compliance with the requirements
for an amendment to the Securities Purchase Agreement as required by
Section 12.2 of that Agreement, and every defect in fulfilling such
requirements for an effective amendment to the that Agreement is hereby
ratified, intentionally waived and relinquished by all parties
hereto.
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6.
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Miscellaneous. Sections
12.1-12.6 inclusive, 12.9 and 12.10 of the Securities Purchase Agreement
are incorporated by reference herein and each provision of that Section
will apply pari passu
to this First Amendment as if fully set forth
herein.
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[Signature
Page Follows]
IN WITNESS WHEREOF, the
parties hereto have caused this First Amendment to Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
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“THE
COMPANY”
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“INVESTOR”
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CHINA
BROADBAND, INC.
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By:
_______________________________
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_______________________________ |
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Name: Xxxx
Xxxxxx
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Name: Xxxxx
XxXxxxx
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Title: President
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EXHIBIT
A
Termination,
Assignment and Assumption Agreement
(attached)1
1 For
reference, this is doc. “Sinotop Assignment and Assumption Agreement –
VIE.”
EXHIBIT
B
Loan
Cancellation and Note Assignment Agreement
(attached)
