Attached files
file | filename |
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8-K - IDEANOMICS, INC. | v176915_8k.htm |
EX-10.3 - IDEANOMICS, INC. | v176915_ex10-3.htm |
EX-10.1 - IDEANOMICS, INC. | v176915_ex10-1.htm |
Execution
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THIS
CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAW OF ANY OTHER
JURISDICTION. NO SALE OR DISPOSITION OF THIS NOTE MAY BE EFFECTED
EXCEPT IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS
CONVERTIBLE PROMISSORY
NOTE
US$580,000.00
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March 9, 2010
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Hong
Kong, S.A.R.
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For value
received Sinotop
Group Ltd., a Hong Kong company (“Payor”)
promises to pay to China
Broadband Ltd., a
Cayman Islands company or its assigns (collectively, “Holder”)
the principal sum of Five Hundred Eighty Thousand United States Dollars and No
Cents (US$580,000.00) with interest on the outstanding principal amount at the
rate of five percent (5%) simple interest per annum. Interest will
commence with the date hereof and will continue on the outstanding principal
until paid in full.
1.
This note (the “Note”) is
issued pursuant to the terms of that certain Note Purchase Agreement (the “Note Purchase
Agreement”) dated as the date hereof between the Payor and Holder.
2.
All
payments of interest and principal under this Note will be in lawful money of
the United States of
America, in accordance with written payment instructions delivered by Holder to
Payor. All payments will be applied first to accrued interest, and thereafter to
principal.
3.
The principal and all other amounts outstanding under
this Note will be convertible into shares of the Payor in accordance with this
Section 3.
(a) In
the event the Payor sells shares of its capital stock (“Shares”)
in a transaction or series of related transactions resulting in aggregate gross
proceeds to the Payor (excluding amounts related to conversion of the Note) of
at least One Million United States Dollars ($1,000,000) (a “Qualified
Financing”), the outstanding principal hereunder and all interest accrued
thereon shall automatically be converted into the Shares sold in such Qualified
Financing at a price equal to seventy percent (70%) of the price per share
generally paid for such Shares by other investors in such Qualified
Financing.
(b) In
the event the Payor undergoes a Change in Control (as defined below), the
outstanding principal hereunder and all interest accrued thereon shall
automatically be converted into ordinary shares of the Payor representing fifty
percent (50%) of the issued and outstanding capital stock of the Payor. For
purposes of this Note, “Change in
Control” means a merger, consolidation or other acquisition in which the
shareholder(s) of the Payor immediately prior to the merger, consolidation or
other acquisition do not continue to own more than fifty percent (50%) of the
voting power of the surviving or acquiring entity, or the sale of all or
substantially all of the assets of the Payor.
(c) This
Note may be converted, at any time after the Maturity Date or upon the
occurrence of an Event of Default, in the sole discretion of the Holder, into
ordinary shares of the Payor representing fifty percent (50%) of the issued and
outstanding capital stock of the Payor, calculated on a fully diluted basis,
assuming all outstanding options and other convertible instruments are exercised
and converted.
4.
Unless this Note has been converted in accordance with
the terms of Section 3 above, the entire outstanding principal balance and all
unpaid accrued interest shall become fully due and payable on the earlier of (a)
the fifth annual anniversary of the date first set forth above; or (b) the date
which is one day before the closing of a Change in Control (in either case, the
“Maturity
Date”).
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5.
This Note may not be prepaid
prior to the Maturity Date unless the Holder consents to such prepayment in
writing.
6.
This Note may be assigned by the Holder in its sole
discretion. It may not be assigned, nor may any of Payor’s obligations hereunder
be delegated, without the advance written consent of the Holder, which may be
given or withheld in its sole discretion.
7.
The Payor hereby represents that its directors, in the
exercise of their fiduciary duty, have approved the Payor’s execution of this
Note based upon a reasonable belief that the principal provided hereunder is
appropriate for the Payor after reasonable inquiry concerning the Payor’s
financing objectives and financial situation. In addition, the Payor hereby
represents that it intends to use the principal of this Note for the purposes
set forth in the Note Purchase Agreement.
8.
In case one or more of the following events (“Events of
Default”) (whatever the reason for such Event of Default and whether it
will be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) will have occurred and be
continuing:
(a) default
in the payment of all or any part of the principal of any of this Note as and
when the same will become due and payable, at maturity, upon any redemption, by
declaration or otherwise;
(b) a
default in the payment of all or any part of the interest on any of this Note as
and when same will become due and payable and the default continues without
being cured for a period of three days;
(c) failure
on the part of Payor duly to observe or perform any other of the covenants or
agreements on the part of Payor contained in this Note or the Note Purchase
Agreement (other than those covered by clauses (a) and (b) above) for a period
of thirty (30) days after the date on which written notice specifying such
failure, stating that such notice is a “Notice of
Default” hereunder and demanding that Payor remedy the same, will have
been given by registered or certified mail, return receipt requested, to
Payor;
(d) any
event or condition will occur which results in the acceleration of the maturity
of any Debt or enables or, with the giving of notice or lapse of time or both,
would enable the holder of such Debt or any Person acting on such holder’s
behalf to accelerate the maturity thereof;
(e) Payor
pursuant to or within the meaning of any applicable insolvency or bankruptcy law
(“Bankruptcy
Law”): (i) commences a voluntary case or proceeding, (ii)
consents to the entry of an order for relief against it in an involuntary case
or proceeding, (iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property, (iv) makes a general assignment for the
benefit of its creditors, or (v) admits in writing its inability to pay its
debts as the same become due;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that: (i) is for relief against Payor in an involuntary case, (ii) appoints
a custodian of Payor or for all or substantially all of the property of Payor,
or (iii) orders the liquidation of Payor; and such order or decree remains
unstayed and in effect for sixty (60) days; or
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(g) all
or substantially all of Payor’s assets or business (whether by sale, exclusive
license or otherwise) will have been sold or transferred to any Person who does
not control Payor on the date of this Note;
then, in
each case where an Event of Default occurs, the Holder, by notice in writing to
Payor (the “Acceleration
Notice”), may, at its option, declare the principal hereunder and all
accrued and unpaid interest hereon to be due and payable immediately, and upon
any such declaration the same will become immediately due and payable; provided that if an Event of
Default specified in Sections 8(e) or 8(f) occurs, the principal hereunder and
all accrued and unpaid interest hereon will become and be immediately due and
payable without any declaration or other act on the part of the
Holders.
9.
Payor
hereby waives demand, notice, presentment, protest and notice of
dishonor.
10. All
disputes arising out of or relating to this Note will be resolved in accordance
with the Dispute Resolution provisions of the Note Purchase
Agreement.
11. If
one or more provisions of this Note are held to be unenforceable under
applicable law, such provision will be excluded from this Note and the balance
of the Note will be interpreted as if such provision were so excluded and will
be enforceable in accordance with its terms, and the Holder and the Payor will
endeavor to take such action as necessary to achieve the same purpose of such
provision held to be unenforceable.
12. The
terms of this Note will be construed in accordance with the laws of Hong
Kong.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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Any term
of this Note may only be amended or waived with the written consent of the
Holder in its sole and absolute discretion.
SEALED
with the Common Seal of
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Sinotop
Group, Ltd. and
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signed
by
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Name
: LIU Weicheng
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Title
: Sole Director
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in
the presence of:-
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