EXHIBIT 3
EXECUTION COPY
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
(GAIN THOUSAND LIMITED)
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT dated December 28,
2007 (the "AGREEMENT"), by and among China Mobile Media Technology Inc., a
Nevada corporation (the "COMPANY"), Gain Thousand Limited, a British Virgin
Islands corporation (the "SELLER"), and Abax Lotus Limited (the "BUYER").
WHEREAS, pursuant to that certain Stock Purchase Agreement dated
October 26, 2007 (the "PRIOR AGREEMENT"), the Seller transferred to Buyer an
aggregate of 375,000 shares of common stock, par value $0.001 per share (the
"COMMON STOCK"), of the Company on the terms and conditions stated in the Prior
Agreement;
WHEREAS, the parties to the Prior Agreement hereby express their
intent to amend and restate the terms and conditions of the Prior Agreement in
their entirety; and
WHEREAS, the Company, in consideration of the Buyer's proposed
purchase of the Company's warrants and of the Buyer's proposed purchase of
USD-settled guaranteed senior notes to be issued by the Company's wholly owned
subsidiary, Magical Insight Investments Limited, and in order to induce the
Buyer to amend and restate the Prior Agreement, makes the representations and
warranties in Article 4 hereof.
NOW THEREFORE, in consideration of the mutual covenants of the
parties set forth in this agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1 - DEFINITIONS
When used herein, the terms set forth below have the meanings
indicated or referenced below. In this agreement, use of the singular or the
plural includes both the singular and the plural unless the context clearly
indicates that only the singular or only the plural is intended.
"AGREEMENT" has the meaning set forth in the Preamble.
"BUSINESS DAY" means neither a Saturday, a Sunday nor a legal
holiday on which banks are authorized or required to be closed in Hong Kong.
"BUYER" has the meaning set forth in the Preamble.
"CLOSING PRICE" of the Common Stock on any date means the last sale
price per share of Common Stock on the Trading Market on the applicable day, or
if no sale occurred on such day, the mean between the closing "bid" and "asked"
prices on such day.
"COMMON STOCK" has the meaning set forth in the Recitals.
"COMPANY" has the meaning set forth in the Preamble.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"INITIAL PAYMENT" means US$1,800,000.
"LIEN" means any lien, mortgage, security interest, tax lien,
pledge, encumbrance, conditional sale or title retention arrangement, or any
other interest in property designated to secure the repayment of indebtedness,
or other equitable or adverse claim or restriction whether arising by agreement
or under any statute or law, or otherwise.
"PERSON" means an individual, a corporation, a partnership
(including, a limited partnership), a limited liability company, a joint
venture, an association, a joint stock company, a trust, a business trust, a
government or any agency or any political subdivision, any unincorporated
organization or any other entity.
"PRIOR AGREEMENT" has the meaning set forth in the Recitals.
"PURCHASE PRICE" means the sum of the Initial Payment and any
amounts payable from Buyer to Seller pursuant to Section 2.5.
"REFERENCE PRICE" per share of Common Stock for a calendar month
shall mean the lower of (i) the Closing Price for the Common Stock quoted on the
Trading Market on the last Trading Day of such calendar month, and (ii) the VWAP
for five consecutive Trading Days immediately preceding the end of such calendar
month; provided that, in no event shall the Reference Price be deemed to be less
than US$1.20 (as may be proportionally adjusted for stock splits, combinations,
recapitalizations and the like).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" has the meaning set forth in the Preamble.
"SHARES" means 1,500,000 shares of Common Stock to be transferred by
Seller to Buyer pursuant to the terms and conditions of this Agreement.
"SUBSEQUENT CLOSING" and each "SUBSEQUENT CLOSING DATE" shall occur
on a monthly basis on the last Business Day for each of the 24 calendar months
following the date of this Agreement.
"TRADING DAY" shall mean (x) if the Common Stock is quoted on the
Nasdaq National Market, a day on which trades may be made thereon, (y) if the
Common Stock is listed or admitted for trading on the American Stock Exchange or
New York Stock Exchange, a day on which trades may be made on such exchange or
(z) if the Common Stock is not so listed, admitted for trading or quoted, any
day other than a Saturday or Sunday or a day on which banking institutions in
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the State of New York are authorized or obligated by law or executive order to
close.
"TRADING MARKET" means the following markets or exchanges on which
the Common Stock is listed or quoted for trading on the date in question: the
Nasdaq Capital Market, the American Stock Exchange, the New York Stock Exchange,
the Nasdaq Global Market, the Nasdaq Global Select Market or the OTC Bulletin
Board.
"VWAP" means, for any date, the price determined by the first of the
following clauses that applies: (a) if the Common Stock is then listed or quoted
on a Trading Market, the daily volume weighted average price of the Common Stock
for such date (or the nearest preceding date) on the Trading Market on which the
Common Stock is then listed or quoted for trading as reported by Bloomberg
Financial L.P. through its "Volume at Price" functions (based on a Trading Day
from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time); (b) if
the OTC Bulletin Board is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on the
OTC Bulletin Board; or (c) if the Common Stock is not then quoted for trading on
the OTC Bulletin Board and if prices for the Common Stock are then reported in
the "Pink Sheets" published by Pink Sheets, LLC (or a similar organization or
agency succeeding to its functions of reporting prices), the average of the
highest closing bid price and lowest closing ask price of any of the market
makers for such security as reported, and in each of the foregoing clauses
ignoring any block trade (which for purposes of this definition means any
transfer of more than 100,000 shares). If the VWAP cannot be calculated for such
security on such date on any of the foregoing bases, the VWAP of such security
on such date shall be the fair market value as mutually determined by the Buyer
and the Seller.
ARTICLE 2 - PURCHASE AND SALE
Section 2.1 Purchase and Sale of Shares. On the terms and subject to
the conditions of this Agreement, and in reliance upon the representations and
warranties contained herein, (i) Seller shall sell, convey, transfer and deliver
to the Buyer the Shares, and (ii) the Buyer shall purchase the Shares from the
Seller.
Section 2.2 Purchase Price. The Buyer shall pay to the Seller the
Purchase Price for the purchase of the Shares at the times further provided in
Section 2.4 and Section 2.5. Each portion of the Purchase Price shall be paid to
the Seller by wire transfer or certified check.
Section 2.3 Closing. The initial closing of the transactions
provided for herein (the "INITIAL CLOSING") will take place at the offices of
the Buyer at 10:00 A.M. (Hong Kong time) on October 26, 2007 (the "INITIAL
CLOSING DATE") or at such other place, time and date as may be agreed upon by
Buyer and the Seller, subject to the representations and warranties made by the
parties hereto being true and accurate as of such date.
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Section 2.4 Transactions on the Initial Closing Date. At the Initial
Closing, the following deliveries shall take place contemporaneously, and none
shall be deemed to occur until all have occurred:
(a) Seller will deliver to Buyer share certificates, in form
suitable for transfer, registered in the name of Seller, evidencing the Shares
to be transferred according to the terms hereof, endorsed in blank or with an
executed blank stock transfer power attached, and with any necessary stock
transfer tax stamps attached thereto; and
(b) Seller will deliver to Buyer a copy of the register of
charges of the Seller dated a date reasonably near to the Closing Date, listing
all effective charges and mortgages which name the Seller as the debtor,
together with copies of such charges and mortgages;
(c) [Seller will deliver to Buyer the opinion of Xxxxxxx
Xxxxxx Bailhache, as to matters of BVI law, dated the Initial Closing Date, in
the form reasonably acceptable to the Buyer;]
(d) [Seller will deliver to Buyer the opinion of Loeb & Loeb
LLP, as to matters of United States federal and New York law, dated the Initial
Closing Date, in the form reasonably acceptable to the Buyer;] and
(e) Buyer will deliver to Seller the Initial Payment in
payment of the Purchase Price, subject to adjustment as provided in Section 2.5.
Section 2.5 Transactions on each Subsequent Closing Date.
On the second Business Day following each Subsequent Closing Date,
the Buyer shall pay to the Seller in cash in immediately available funds an
amount per Share equal to the positive difference between (x) the Reference
Price for such Subsequent Closing Date and (y) the Reference Price for the prior
calendar month; provided that in no event shall Buyer pay more in aggregate than
US$.40 per Share (as may be proportionally adjusted for stock splits,
combinations, recapitalizations and the like), at which time the Purchase Price
shall be deemed to have been paid in full satisfaction of the Shares and the
Buyer shall have no further obligation to make any payment in respect of the
Shares.
Section 2.6 Termination. Anything contained in this Agreement other
than in this Section 2.6 to the contrary notwithstanding, this Agreement may be
terminated in writing at any time on or prior to the Initial Closing:
(a) by Buyer, if Seller, or any other Person that proposes
to sell to Buyer contemporaneously herewith any other Common Stock, breaches any
of its representations, warranties or obligations hereunder (or under any other
agreement with Buyer, in the case of any such other Person) and such breach has
not been cured or waived and Seller (or such other Person) has not provided
reasonable assurance that such breach will be cured on or before the Initial
Closing Date; or
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(b) by the Seller, if Buyer breaches any of its
representations, warranties or obligations hereunder and such breach has not
been cured or waived and Buyer has not provided reasonable assurance that such
breach will be cured on or before the Initial Closing Date.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as of the date
hereof and as of the Initial Closing Date as follows:
Section 3.1 Corporate Organization. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the British
Virgin Islands and has all requisite corporate power and authority to carry on
its business as now being conducted and to own its properties and is duly
licensed or qualified and in good standing as a foreign corporation in each
jurisdiction in which it is required to be so licensed or so qualified, except
where the failure to be so licensed or so qualified would not have a material
adverse effect on the financial condition, assets, liabilities (contingent or
otherwise), results of operations, business or business prospects of Seller.
Section 3.2 Authority of the Seller. The Seller has full power and
authority to enter into this Agreement and to perform the Seller's obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Seller and constitutes a valid and
legally binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except to the extent that its enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
Section 3.3 No Consents, Approvals, Violations or Breaches. Neither
the execution and delivery of this Agreement by the Seller, nor the consummation
by the Seller of the transactions contemplated hereby, will (i) require any
consent, approval, authorization or permit of, or filing, registration or
qualification with or prior notification to, any governmental or regulatory
authority under any law applicable to the Seller, (ii) violate any statute, law,
ordinance, rule or regulation of any governmental authority having jurisdiction
over the Seller or any of its assets, or any judgment, order, writ, decree or
injunction applicable to the Seller or any of the Seller's properties or assets,
the violation of which would have a material adverse effect upon the Seller's
ability to consummate the transactions contemplated hereby, or (iii) violate,
conflict with, or result in a breach of any provisions of, or constitute a
default (or any event which, with or without due notice or lapse of time, or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which the Seller is a
party or by which the Seller or any of the Seller's properties or assets may be
bound which would have a material adverse effect upon the Seller.
Section 3.4 Ownership of the Shares.
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(a) The Seller is the record and beneficial owner of the
Shares. The Seller has good and clear title to the Shares and, upon the transfer
of the Shares on the Initial Closing Date in accordance with this Agreement, the
Buyer will receive good and valid title to the Shares, free and clear of all
Liens other than restrictions on transfer imposed by the Securities Act and
applicable state securities or "Blue Sky" laws.
(b) There are no options, warrants, rights, calls,
commitments, conversion rights, rights of exchange or other agreements of any
character, contingent or otherwise, providing for the purchase or sale of any of
the Shares by any Person other than the Buyer pursuant hereto, nor any
arrangements that require or permit the Shares to be voted by or at the
discretion of anyone other than the Seller.
Section 3.5 Not a "U.S. Person". The Seller is not a "U.S. Person"
as defined in Rule 902 of Regulation S promulgated under the Securities Act, was
not organized under the laws of any United States jurisdiction, and was not
formed for the purpose of investing in securities not registered under the
Securities Act. At the time this transaction was originated, the Seller was
outside the United States.
Section 3.6 Intent. The Seller is selling the Shares solely for the
Seller's own account and not for the account or benefit of any U.S. person.
Section 3.7 Exempt from Registration. The sale of the Shares
hereunder is exempt from registration under the Securities Act.
Section 3.8 Information. In the course of discussions relating to
this Agreement and the transaction contemplated hereby, Seller has not conveyed
to Buyer any material non-public information in respect of the Company or the
Company's business, operations, pending transactions, financial condition,
results of operations, or prospects.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Buyer to purchase the Shares, the Company
represents and warrants to the Buyer as of the date hereof and as of the Initial
Closing Date as follows:
Section 4.1 SEC Reports; Financial Statements. The Company has filed
all reports, schedules, forms, statements and other documents required to be
filed by it under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or
such shorter period as the Company was required by law or regulation to file
such material) (the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, being collectively referred to
herein as the "SEC REPORTS") on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the
expiration of any such extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the Commission promulgated
thereunder, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with
United States generally accepted accounting principles applied on a consistent
basis during the periods involved ("GAAP"), except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited
financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller on the date hereof
and as of the Initial Closing Date as follows:
Section 5.1 Authority. The Buyer has full power and authority to
enter into this Agreement and to perform the Buyer's obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Buyer and constitutes a valid and legally binding
obligation of the Buyer enforceable against the Buyer in accordance with its
terms, except to the extent that its enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable principles.
Section 5.2 No Consents, Approvals, Violations or Breaches. Neither
the execution and delivery of this Agreement by the Buyer, nor the consummation
by the Buyer of the transactions contemplated hereby, will (i) require any
consent, approval, authorization or permit of, or filing, registration or
qualification with or prior notification to, any governmental or regulatory
authority under any law applicable to the Buyer, or (ii) violate any statute,
law, ordinance, rule or regulation of any governmental authority having
jurisdiction over the Buyer or any of its assets, or any judgment, order, writ,
decree or injunction applicable to the Buyer or any of his properties or assets,
the violation of which would have a material adverse effect upon the Buyer.
Section 5.3 Investment Representations.
(a) Intent. The Buyer is purchasing the Shares for the
Buyer's own account and not for the account or benefit of any U.S. person, and
not with a view towards the distribution or dissemination thereof.
(b) Independent Investigation. The Buyer, in making the
decision to purchase the Shares has relied upon an independent investigation of
the Company and has not relied upon any information or representations made by
any third parties or upon any oral or written representations or assurances from
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the Company, its officers, directors or employees or any other representatives
or agents of the Company, other than as set forth in this Agreement. The Buyer
is familiar with the business, operations and financial condition of the Company
and has had an opportunity to ask questions of, and receive answers from, the
Company's officers and directors concerning the Company and the Shares and has
had full access to such other information concerning the Company as the Buyer
has requested.
(c) Reliance on Representations and Warranties. The Buyer
understands that the Shares are being offered and sold to the Buyer in reliance
on specific provisions of United States federal and state securities laws and
that the Seller is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of the Buyer set
forth in this Agreement in order to determine the applicability of such
provisions.
ARTICLE 6 - OTHER AGREEMENTS
Section 6.1 Resales. The Buyer agrees to resell the Shares only in
accordance with the provisions of Regulation S of the Securities Act, pursuant
to registration under the Securities Act or pursuant to an available exemption
from registration; and agrees not to engage in hedging transactions with regard
to the Shares unless in compliance with the Securities Act.
Section 6.2 Legends. Each certificate evidencing the Shares shall
bear a legend substantially in the following form:
BY PURCHASING OR ACCEPTING THIS SECURITY, THE HOLDER OF THIS SECURITY
AGREES FOR THE BENEFIT OF THE ISSUER HEREOF THAT (A) THIS SECURITY MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESTRICTIONS REFERRED TO IN (A)
ABOVE.
Section 6.3 Register of Transfer. The Company hereby agrees to
refuse to register any transfer of the Shares not made in accordance with the
provisions of Regulation S, or pursuant to an exemption from registration based
on a legal opinion to be issued by counsel to the transferor.
ARTICLE 7 - MISCELLANEOUS
Section 7.1 Notices. All notices and other communications provided
for herein shall be in writing and shall be deemed to have been duly given,
delivered and received if delivered personally, if sent by facsimile, registered
or certified mail (return receipt requested) postage prepaid, or by courier
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guaranteeing next day delivery, in each case to the party to whom it is directed
at the following addresses (or at such other address for any party as shall be
specified by notice given in accordance with the provisions hereof, provided
that notices of a change of address shall be effective only upon receipt
thereof). Notices delivered personally shall be effective on the day so
delivered, notices sent by registered or certified mail shall be effective three
(3) days after mailing, notices sent by facsimile shall be effective when the
sender receives a receipt acknowledging delivery, and notices sent by courier
guaranteeing next day delivery shall be effective on the earlier of the second
Business Day after timely delivery to the courier or the day of actual delivery
by the courier. Notices should be addressed to the address of the Buyer or the
Seller, as applicable, indicated on the signature page hereto.
Section 7.2 Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors in interest and
permitted assigns.
Section 7.3 Entire Agreement. This Agreement constitutes the entire
understanding of the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings, whether oral or written,
including without limitation the Prior Agreement. No amendment or modification
of the terms of this Agreement shall be binding or effective unless expressed in
writing and signed by each party.
Section 7.4 No Waiver. The waiver by any party of the breach of any
of the terms and conditions of, or any right under, this Agreement shall not be
deemed to constitute the waiver of any other breach of the same or any other
term or condition or of any similar right. No such waiver shall be binding or
effective unless expressed in writing and signed by the party giving such
waiver.
Section 7.5 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of law.
Section 7.6 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE
THEIR RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS
AGREEMENT.
Section 7.7 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
Section 7.8 Construction. The article and section headings contained
in this agreement are inserted for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
Section 7.9 Further Assurances. Each party will execute and deliver
such further agreements, documents and instruments and take such further action
as may be reasonably requested by the other party to carry out the provisions
and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SELLER:
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GAIN THOUSAND LIMITED
/s/ Cheng Huanbao
-------------------------------------
Address:
Facsimile No.:
BUYER:
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ABAX LOTUS LTD.
/s/ Xxxx Xxxxxxxxx
-------------------------------------
Address:
x/x Xxxx Xxxxxx Xxxxxxx (Xxxx Xxxx) Limited
Suite 6708, 67/F Two International Finance Centre
0 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx SAR
Facsimile: x000 0000 0000
COMPANY:
CHINA MOBILE MEDIA TECHNOLOGY INC.
/s/ Ma Qing
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Address:
0xx Xxxxx, Xxxxx X, Xxxxxx-Xxxxxx
Xx.00 Xxxxxxxxxxx Xxxx Xxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxx 100083
Attention: Chief Financial Officer
Facsimile: x00 00 0000 0000
