NOTE EXCHANGE
AGREEMENT
This Note
Exchange Agreement (this “Agreement”) is made
and entered into as of April 2, 2009, by and among (i) Sculptor Finance (MD)
Ireland Limited, Sculptor Finance (AS) Ireland Limited and Sculptor Finance (SI)
Ireland Limited (collectively, the “Existing
Noteholders”), (ii) OZ Master Fund, Ltd., OZ Asia Master Fund, Ltd. and
OZ Global Special Investments Master Fund, L.P. (collectively, the “Existing Warrant
Holders,” and together with the Existing Noteholders, the “Holders”), and (iii)
Network CN Inc., a Delaware corporation (the “Company”).
RECITALS
WHEREAS,
each Existing Noteholder currently holds that principal amount of the 3% Senior
Secured Convertible Notes due June 30, 2011 of the Company set forth opposite
such Existing Noteholder’s name on Schedule A (the
“Old
Notes”);
WHEREAS,
the Existing Warrant Holders currently hold warrants to purchase an aggregate of
34,285,715 shares of the Company’s common stock (the “Warrants”);
WHEREAS,
in connection with the issuance of the Old Notes, the Company executed that
certain Note and Warrant Purchase Agreement, dated November 19, 2007, as amended
by the First Amendment to the Note and Warrant Purchase Agreement, dated as of
January 31, 2008, with the Holders and the other parties named therein (the
“Purchase
Agreement”) which provides that the Old Notes are secured by the security
interests provided in the Offshore Security Documents and Onshore Security
Documents (as defined in the Purchase Agreement) (“Security Interests
I”).
WHEREAS,
in connection with the Purchase Agreement, the Company executed that certain
Security Agreement, dated January 31, 2008, with Sculptor Finance (MD) Ireland
Limited, as the collateral Agent (the “Collateral Agent”)
for and representative of the Holders (the “Security Agreement”),
pursuant to which the Company granted a security interest to the Holders in the
Collaterals (as defined in the Security Agreement) (“Security Interests
II,” and together with Security Interests I, the “Security
Interests”);
WHEREAS,
the Holders desire to cancel the Warrants and exchange the Old Notes for the
Company’s 1% Unsecured Senior Convertible Notes due 2012 (the “New Notes”), on the
terms and conditions set forth in this Agreement (the “Exchange”);
WHEREAS,
the Company desires to issue to the Existing Noteholders that principal amount
of New Notes in exchange for the Old Notes in the Exchange in the amount set
forth on Schedule A;
WHEREAS,
the Company desires to cancel the Warrants and issue to the Existing Noteholders
the New Notes in exchange for the Old Notes;
WHEREAS,
the board of directors of the Company has authorized the issuance of the New
Notes substantially in the form of Exhibit A
hereto;
WHEREAS,
in connection with the Exchange, the Holders have agreed to release the
Securities Interests and terminate the Security Agreement;
WHEREAS,
the Existing Noteholders agreed to sell a portion of the 3% Senior Secured
Convertible Notes Due June 30, 2011 held by them (the “Sale Convertible
Notes”) to Keywin Holdings Limited (the “New Investor”)
pursuant to that certain Note Purchase Agreement, of even date herewith, by and
between the Existing Noteholders and the New Investor (the “Note Purchase
Agreement”);
WHEREAS,
in connection with the Exchange and the sale of the Sale Convertible Notes, the
Company and the New Investor will enter into the Note Exchange and Option
Agreement pursuant to which the Sale Convertible Notes will be exchanged for
307,035,463 shares of the Company’s common stock and the Company will grant the
New Investor an option to purchase an aggregate of 122,814,185 shares of the
Company’s common stock (the “Option”) for an
aggregate purchase price of $2,000,000 (the “Note Exchange and Option
Agreement”);
WHEREAS,
in connection with the issuance of the New Notes, the Company will agree to
provide the Holders and the New Investor certain registration rights in respect
of the Company’s common stock issuable upon conversion of the New Notes pursuant
to the Amended and Restated Registration Rights Agreement, to be entered into by
the Company, the Holders and the New Investor, substantially in the form of
Exhibit B
hereto (the “Registration Rights
Agreement”); and
WHEREAS,
in connection with the issuance of the New Notes the Company will agree to
provide the Holders certain investor’s rights pursuant to the Letter Agreement,
to be entered into by the Company, the Holders and the New Investor,
substantially in the form of Exhibit C hereto
(the “Letter
Agreement,” together with this Agreement, the Note Purchase Agreement,
the Registration Rights Agreement, the Note Exchange and Option Agreement and
the New Notes, the “Transaction
Documents”).
NOW,
THEREFORE, in consideration of the premises and the agreements set forth below,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE
1
Exchange
Section
1.1 Exchange and Sale of the New
Notes. Upon the terms and subject to the conditions of this
Agreement, at the Closing (as defined herein), the Company shall issue and
exchange, subject to Section 1.2 hereof, to the Existing Noteholders, and
the Existing Noteholders agree to accept from the Company, that aggregate
principal amount of New Notes set forth in Schedule A in
exchange for that aggregate principal amount of Old Notes set forth in Schedule A,
together with all accrued and unpaid interest thereon.
Section
1.2 Cancellation of Old
Notes. Pursuant to the Old Notes and the Purchase Agreement,
each Existing Noteholder hereby agrees that such Existing Noteholder’s Old Notes
shall be cancelled in connection with the Exchange and all of the Company’s
obligations thereunder shall be deemed to have been satisfied.
Section
1.3 Release of Security
Interests. Subject to the completion of the sale and exchange of the New
Notes, pursuant to Section 1.1 hereof, each Holder hereby agrees that the
Security Agreement is terminated and the Security Interests and any other
security interests arising out of the Purchase Agreement and the Old Notes shall
be released and discharged. Each Holder hereby releases and reconveys
to the Company, without recourse, any and all of its right, title, claim and
interest in and to the Collaterals, provided, however, that the
Company shall bear all expenses in connection with such
release.
Section
1.4 Cancellation of
Warrants. Each Existing Warrant Holder hereby agrees that such
Existing Warrant Holder’s Warrants shall be cancelled in connection with the
Exchange and all of the Company’s obligations thereunder shall be deemed to have
been satisfied.
Section
1.5 Regulation
S. The issuance of the New Notes to Existing Noteholders will
be made without registration of the New Notes under the Securities Act of 1933,
as amended (together with the rules and regulations promulgated thereunder, the
“Securities
Act”), in reliance upon the exemption therefrom provided by Regulation S
promulgated under the Securities Act (the “Regulation S”) and in
reliance on similar exemptions under state securities or “blue sky”
laws.
Section
1.6 Closing
Mechanics. The closing of the transactions contemplated by
this Agreement shall occur at the offices of Pillsbury Winthrop Shaw Pittman
LLP, 2300 N Street, N.W., Washington, D.C., or such other location as may be
mutually acceptable at 9:00 a.m., Eastern Standard Time, on the date hereof
or at such other time on the same date or such other date as the parties may
agree in writing (such time and date, the “Closing
Date”). On the Closing Date, the Company shall issue New Notes
to each Existing Noteholder in the amounts set forth on Schedule A
attached hereto.
Section
1.7 Conditions to
Closing.
(a) The
obligation of the Holders hereunder to consummate the transactions contemplated
hereby at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Holders’ sole benefit and may be waived by the Holders at any time in
its sole discretion by providing the Company with prior written notice
thereof:
(i) The
Company shall have executed and delivered the New Notes in the aggregate
principal amount set forth in Schedule A;
(ii) The
Company and the New Investor shall have executed and delivered the Registration
Rights Agreement;
(iii) The
Company and the New Investor shall have executed and delivered the Note Exchange
and Option Agreement;
(iv) The New
Investor and the Existing Noteholders shall have executed and delivered the Note
Purchase Agreement;
(v) The
Company and the New Investor shall have executed and delivered the Letter
Agreement;
(vi) The
representations and warranties of the Company and the New Investor in each of
the Transaction Documents shall be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the agreements
and satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date; and
(vii) The
Company shall have delivered the opinions of Pillsbury Winthrop Shaw Pittman
LLP, U.S. counsel to the Company, dated the Closing Date, in the form and
substance attached hereto as Exhibit
D;
(b) The
obligation of the Company hereunder to consummate the transactions contemplated
hereby at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Company’s sole benefit and may be waived by the Company at any time in
its sole discretion by providing the Holders with prior written notice
thereof:
(i) Each
Existing Noteholder and the New Investor shall have executed and delivered to
the Company the Registration Rights Agreement;
(ii) The New
Investor shall have executed and delivered the Note Exchange and Option
Agreement;
(iii) The New
Investor and the Existing Noteholders shall have executed and delivered the Note
Purchase Agreement;
(iv) The
Existing Noteholders and the New Investor shall have executed and delivered the
Letter Agreement;
(v) The
Existing Noteholders shall have delivered, or caused to be delivered, to the
Company (i) the Old Notes being exchanged pursuant to this Agreement and
(ii) all documentation related to the right, title and interest in and to
all of the Old Notes, and whatever documents of conveyance or transfer may be
necessary or reasonably desirable to transfer to and confirm in the Company all
right, title and interest in and to (free and clear of any mortgage, lien,
pledge, charge, security interest, encumbrance, title retention agreement,
option, equity or other adverse claim thereto) the Old Notes;
(vi) The
Existing Warrant Holders shall have delivered, or caused to be delivered, to the
Company (i) the Warrants being cancelled pursuant to this Agreement and
(ii) all documentation related to the right, title and interest in and to
all of the Warrants, and whatever documents of conveyance or transfer may be
necessary or reasonably desirable to transfer to and confirm in the Company all
right, title and interest in and to (free and clear of any mortgage, lien,
pledge, charge, security interest, encumbrance, title retention agreement,
option, equity or other adverse claim thereto) the Warrants; and
(vii) The
representations and warranties of each Holder in this Agreement shall be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date and that the Holders shall have complied
in all material respects with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date.
ARTICLE
2
Representations
and Warranties of the Holders
Each
Holder hereby severally makes the following representations and warranties (it
being understood, however, that the Existing Warrant Holders are only making the
representations and warranties set forth in Sections 2.1 through 2.3 and the
Existing Noteholders are only making the representations and warranties set
forth in Sections 2.1 through 2.2 and Sections 2.4 through 2.8), each of which
is true and correct on the date hereof and the Closing Date and shall survive
the Closing Date and the transactions contemplated hereby to the extent set
forth herein.
Section
2.1 Existence and Power.
The Holder is duly organized and validly existing under the laws of the
jurisdiction of its organization and has the power, authority and capacity to
execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby.
Section
2.2 No
Conflict. The execution and delivery of this Agreement by the
Holder, and the performance by the Holder of the transactions contemplated
hereby, do not and will not (i) constitute a default or violation under the
organizational and/or management documents of the Holder, or (ii) conflict with
or violate any laws, judgments, orders or decrees applicable to the Holder or by
which its properties or assets are bound, except for such breaches, conflicts,
defaults, rights or violations which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. As used in this Agreement, the term “Material Adverse
Effect” shall mean, in respect of a party, a material adverse effect on
the business, condition (financial or otherwise), properties or results of
operations of such party, or an event, change or occurrence that would
materially and adversely affect the ability of such party to perform its
obligations under the Transaction Documents to which it may be a
party.
Section
2.3 Valid and Enforceable
Agreement; Authorization. This Agreement has been duly
executed and delivered by the Holder and constitutes a legal, valid and binding
obligation of the Holder, enforceable against the Holder in accordance with its
terms, except that such enforcement may be subject to (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to enforcement of creditors’ rights generally, and (b) general
principles of equity.
Section
2.4 Title to
Warrants. The Existing Warrant Holder has good and valid title
to the Warrants in the aggregate principal amount set forth on Schedule B, free and
clear of any mortgage, lien, pledge, charge, security interest, encumbrance,
title retention agreement, option, equity or other adverse claim
thereto. The Existing Warrant Holder has not, in whole or in part,
(i) assigned, transferred, hypothecated, pledged or otherwise disposed of
the Warrants or its rights in such Warrants, or (ii) given any person or
entity any transfer order, power of attorney or other authority of any nature
whatsoever with respect to such Warrants which would limit the Existing Warrant
Holder’s power to transfer the Warrants hereunder.
Section
2.5 Title to Old
Notes. The Existing Noteholder has good and valid title to the
Old Notes in the aggregate principal amount set forth on Schedule A, free and
clear of any mortgage, lien, pledge, charge, security interest, encumbrance,
title retention agreement, option, equity or other adverse claim
thereto. The Existing Noteholder has not, in whole or in part,
(i) assigned, transferred, hypothecated, pledged or otherwise disposed of
the Old Notes or its rights in such Old Notes, or (ii) given any person or
entity any transfer order, power of attorney or other authority of any nature
whatsoever with respect to such Old Notes which would limit the Existing
Noteholder’s power to transfer the Old Notes hereunder.
Section
2.6 Regulation S
Representations.
(a) The
Existing Noteholder and the person(s), if any, for whose account it is acquiring
New Notes and the shares of the Company’s common stock underlying the New Notes
(the “Underlying
Common Stock,” and together with the New Notes, the “Securities”) is not a
“U.S. Person” (as defined in Rule 902 of Regulation S) and the Existing
Noteholder is purchasing the Securities outside the United States in an offshore
transaction meeting the requirements of Regulation S.
(b) The
Existing Noteholder acknowledges that the Securities are “restricted securities”
as defined in Rule 144 under the Securities Act and have not been and will not
be registered under the Securities Act, or any other law of the U.S. or any
other jurisdiction thereof, and accordingly may not be offered or sold or
otherwise transferred in the United States or to, or for the account or benefit
of, U.S. Persons unless registered or an exemption from registration is
available.
(c) The
Existing Noteholder acknowledges that it is not subscribing pursuant hereto for
Securities as a result of or pursuant to any “general solicitation or
general advertising” (as
those terms are used in Regulation D under the 1933 Act), including, but not
limited to (i) any advertisement, article, notice or other communications
published in any newspaper, magazine or similar media (including any internet
site whose information about the Company is not password protected) or broadcast
over television or radio, or (ii) any seminar or meeting whose attendees,
including the Existing Noteholder, had been invited as a result of, subsequent
to or pursuant to any of the foregoing.
(d) The
Securities to be acquired by the Existing Noteholder shall be acquired for
investment for the Existing Noteholder’s own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and that
the Existing Noteholder has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Existing
Noteholder does not presently have any contract, undertaking, agreement or
arrangement with any Person to sell, transfer or grant participations to such
Person or to any third Person, with respect to any of the
Securities.
(e) The
Existing Noteholder will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Securities except in
compliance with the Securities Act, applicable state securities laws and the
respective rules and regulations promulgated thereunder.
(f) The
Existing Noteholder is, and each account for which it is purchasing is, an
“accredited investor” as defined in Rule 501 of Regulation D under the
Securities Act.
(g) The
Existing Noteholder has the knowledge, sophistication and experience necessary
to make, and is qualified to make decisions with respect to, investments in
shares presenting an investment decision like that involved in the purchase of
the securities, including investments in Securities issued by the Company and
investments in comparable companies, can bear the economic risk of a total loss
of its investment in the Securities and has requested, received, reviewed and
considered all information it deemed relevant in making an informed decision to
purchase the Securities.
(h) The
Existing Noteholder understands that the Securities are being offered and sold
to it in reliance on specific exemptions from the registration requirements of
the United States federal and state securities laws and that the Company is
relying upon the truth and accuracy of, and the Existing Noteholder’s compliance
with, representations, warranties and agreements of the Existing Noteholder set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Existing Noteholder to acquire the Securities.
Section
2.7 Legends. Each
Existing Noteholder understands that the Securities will bear the following
legend (in addition to any legend required under applicable state securities
laws), and the removal of such legend(s) shall be governed by the terms of such
legend(s):
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (AS AMENDED,
THE “ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS
SECURITY MAY NOT BE TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT,
(B) AN EXEMPTION OR QUALIFICATION UNDER APPLICABLE SECURITIES LAWS OR
(C) DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED. ANY ATTEMPT TO TRANSFER, SELL, PLEDGE OR HYPOTHECATE THIS
SECURITY IN VIOLATION OF THESE RESTRICTIONS SHALL BE VOID.
Section
2.8 Tax
Advice. Each Existing Noteholder acknowledges that (i)
purchasing, holding and disposing of the Securities may have tax consequences
under the laws of the United States, (ii) the tax consequences are not described
in this Agreement, and (iii) it is solely the Existing Noteholder’s responsible
for determining the tax consequences applicable to its particular circumstances
and should consult its own tax advisors concerning investment in such
securities.
ARTICLE
3
Representations,
Warranties and Covenants of the Company
The
Company hereby makes the following representations, warranties, and covenants
each of which is true and correct on the date hereof and the Closing Date and
shall survive the date of the Closing and the transactions contemplated hereby
to the extent set forth herein.
Section
3.1 Existence and Power.
The Company and each of the Subsidiaries (an entity shall be deemed to be a
“Subsidiary” of another person if such person directly or indirectly owns,
beneficially or of record, an amount of voting securities of other interests in
such entity that is sufficient to enable such person to elect at leased a
majority of the members of such entity’s board of directors or other governing
body, or (b) at least 50% of the outstanding equity or financial interests of
such entity) is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. The Company has the requisite power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and consummate the transactions contemplated hereby.
Section
3.2 No
Conflict. The execution of this Agreement by the Company and
the consummation by the Company of the transactions contemplated hereby
(i) does not require the consent, approval, authorization, order,
registration or qualification of, or filing with, any governmental authority or
court, or body or arbitrator having jurisdiction over the Company other than as
contemplated in or by the Transaction Documents and state securities regulators;
and (ii) does not and will not constitute or result in a breach, violation
or default under any note, bond, mortgage, deed, indenture, lien, instrument,
contract, agreement, lease or license, whether written or oral, express or
implied, or with the Company’s Certificate of Incorporation or by-laws, or any
statute, law, ordinance, decree, order, injunction, rule, directive, judgment or
regulation of any court, administrative or regulatory body, governmental
authority, arbitrator, mediator or similar body on the part of the Company or on
the part of any other party thereto or cause the acceleration or termination of
any obligation or right of the Company or any other party thereto, except, in
the case of clause (ii) for such breaches, violations or defaults which
would not reasonably be expected to, singly or in the aggregate, result in a
Material Adverse Effect (as defined above).
Section
3.3 Valid and Enforceable
Agreement; Authorization. This Agreement has been duly
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except that such enforcement may be subject to (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to enforcement of creditors’ rights generally, and (b) general
principles of equity.
Section
3.4 Valid Issuance of the New
Notes. The New Notes, when issued and delivered in accordance
with the terms and for the consideration set forth in this Agreement, will
constitute legal and binding obligations of the Company, be validly issued and
free of restrictions on transfer other than restrictions on transfer under this
Agreement, applicable state and federal securities laws and liens or
encumbrances created by or imposed by the Holder, and enforceable against the
Company in accordance with their terms, except that such enforcement may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors’ rights
generally, and (b) general principles of equity. Assuming the
accuracy of the Holders’ representations in Section 2.6 above, the New Notes
will be issued in compliance with applicable U.S. state and federal securities
laws. The conversion rights attached to the New Notes will provide
for the right to convert the New Notes into 214,924,824 shares of the Company’s
common stock (subject to subdivision or consolidation therefore) at an initial
conversion price of US$0.02326, as calculated immediately following the Closing.
Assuming full conversion of the New Notes on the Closing Date, the shares of the
Company’s common stock issuable in respect of the New Notes shall represent 30%
of the fully-diluted share capital of the Company as of the Closing Date (after
giving effect to the consummation of the transactions contemplated under the
Note Exchange and Option Agreement, including the exercise of the Option by the
New Investor, and the issuance of any shares under any stock option or
restricted stock plan of the Company). The Underlying Common Stock
has been duly reserved for issuance, and upon issuance in accordance with the
terms of the New Notes will be validly issued, fully paid and nonassessable and
free of restrictions on transfer other than restrictions on transfer under
applicable federal and state securities laws and liens or encumbrances created
by or imposed by the Holder.
Section
3.5 No Directed
Selling. Neither the Company nor any of its affiliates, nor
any person acting on its behalf or their behalf, directly or indirectly, (i) has
used or will use any form of “directed selling efforts” (as defined in Rule 902
of Regulation S), general solicitation or general advertising in violation of
the Securities Act or made any offer by means of any directed selling efforts in
the United States in connection with the offer and sale of any of the New Notes,
or (ii) offered or solicited offers to buy or sell the New Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
ARTICLE
4
Miscellaneous
Provisions
Section
4.1 Survival of Representations
and Warranties. The agreements of the Company, as set forth
herein, and the respective representations and warranties of the Holders and the
Company as set forth herein in Sections 2 and 3, respectively, shall
survive the Closing Date.
Section
4.2 Public
Disclosure. The Parties will consult with each other before
issuing, and provide each other the opportunity to review and comment upon and
use reasonable efforts to agree on any press release, filing with the Securities
Exchange Commission (“SEC”) or public
statement with respect to this Agreement and the transactions contemplated
hereby and under the other Transaction Documents, and will not issue any such
press release or make any filings with the SEC or any public statement prior to
such consultation and (to the extent practical) agreement, except as may be
required by law or by rules and regulations of, or pursuant to any agreement of,
a stock exchange or trading system. Each Party will not unreasonably
withhold approval from the others with respect to any public
disclosure.
Section
4.3 Notice. Any
notice provided for in this Agreement shall be in writing and shall be either
personally delivered, or mailed first class mail (postage prepaid) with return
receipt requested or sent by reputable overnight courier service (charges
prepaid):
(a) if to an
Existing Warrant Holder, at its address, as follows:
c/o Och-Ziff Capital Management
Group
9 West 57th St., 13th
Floor
New York,
NY 10019
Fax: +1-212-790-0077
Attention: Joel Frank
(b) if to an
Existing Noteholder, at , at its address, as follows:
5 Harbourmaster Place,
IFSC
Dublin 1, Ireland
Fax: +353-1-6806050
Attention: The Directors
with a copy to:
c/o Och-Ziff Capital Management HK
Ltd
Suite 2003A Cheung Kong
Center
2 Queen’s Road Central
Hong Kong S.A.R.
Fax: +852-2297-0818
Attention: Zoltan Varga and David C.
Zeiden
(c) if to the
Company, at its address, as follows:
Network
CN Inc.
21F,
Chinachem Century Tower,
178
Gloucester Road,
Wanchai,
Hong Kong
Tel:
(852) 2833-2186
Fax:
(852) 2295-6977
Attention:
Daley Mok
with a copy to:
Pillsbury
Winthrop Shaw Pittman LLP
50
Fremont Street
San
Francisco, CA 94105
Attention: Scott
Kline, Esq.
A party
may by notice to the other parties designate additional or different addresses
for subsequent notices or communications. Notices will be deemed to
have been given hereunder when delivered personally, three business days after
deposit in the U.S. mail postage prepaid with return receipt requested and two
business days after deposit postage prepaid with a reputable overnight courier
service for delivery on the next business day.
Section
4.4 Entire
Agreement. This Agreement and the other Transaction Documents
embody the entire agreement and understanding of the parties hereto with respect
to the subject matter hereof and supersede all prior and contemporaneous oral or
written agreements, representations, warranties, contracts, correspondence,
conversations, memoranda and understandings between or among the parties or any
of their agents, representatives or affiliates relative to such subject matter,
including, without limitation, any term sheets, emails or draft
documents.
Section
4.5 Assignment; Binding
Agreement. This Agreement and the various rights and
obligations arising hereunder shall inure to the benefit of and be binding upon
the parties hereto and their successors and assigns.
Section
4.6 Counterparts. This
Agreement may be executed in multiple counterparts, and on separate
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Any
counterpart or other signature hereupon delivered by facsimile shall be deemed
for all purposes as constituting good and valid execution and delivery of this
Agreement by such party.
Section
4.7 Governing Law;
Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The parties
hereto agree that any suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby may be instituted in any
State or U.S. federal court in The City of New York and County of New York, and
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The
parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement.
Section
4.8 No Third Party Beneficiaries
or Other Rights. Nothing herein shall grant to or create in
any person not a party hereto, or any such person’s dependents or heirs, any
right to any benefits hereunder, and no such party shall be entitled to sue any
party to this Agreement with respect thereto.
Section
4.9 Waiver;
Consent. This Agreement may not be changed, amended,
terminated, augmented, rescinded or discharged (other than in accordance with
its terms), in whole or in part, except by a writing executed by the parties
hereto. No waiver of any of the provisions or conditions of this
Agreement or any of the rights of a party hereto shall be effective or binding
unless such waiver shall be in writing and signed by the party claimed to have
given or consented thereto. Except to the extent otherwise agreed in
writing, no waiver of any term, condition or other provision of this Agreement,
or any breach thereof shall be deemed to be a waiver of any other term,
condition or provision or any breach thereof, or any subsequent breach of the
same term, condition or provision, nor shall any forbearance to seek a remedy
for any noncompliance or breach be deemed to be a waiver of a party’s rights and
remedies with respect to such noncompliance or breach.
Section
4.10 Word
Meanings. The words such as “herein”, “hereinafter”, “hereof”,
and “hereunder” refer to this Agreement as a whole and not merely to a
subdivision in which such words appear unless the context otherwise
requires. The singular shall include the plural, and vice versa,
unless the context otherwise requires. The masculine shall include
the feminine and neuter, and vice versa, unless the context otherwise
requires.
Section
4.11 No
Broker. Except as set forth in Schedule 4.11 hereto,
no party hereto has engaged any third party as broker or finder or incurred or
become obligated to pay any broker’s commission or finder’s fee in connection
with the transactions contemplated by this Agreement other than such fees and
expenses for which it shall be solely responsible.
Section
4.12 Further
Assurances. The Holders and the Company each hereby agree to
execute and deliver, or cause to be executed and delivered, such other
documents, instruments and agreements, and take such other actions, as a party
hereto may reasonably request in connection with the transactions contemplated
by this Agreement.
Section
4.13 Costs and
Expenses. The Holders and the Company shall each pay their own
respective costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Agreement, including, but not
limited to, attorneys’ fees; provided, however, that the Company
will pay the Holders’ legal expenses incurred in connection with the
negotiation, preparation, execution and performance of the Transaction Documents
in an amount not to exceed US$50,000.
Section
4.14 Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
Section
4.15 Severability. If
any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed as of the date first above written.
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HOLDERS: |
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SCULPTOR
FINANCE (MD) IRELAND LIMITED |
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By:
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/s/ Carmel
Naughton |
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Name:
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Carmel
Naughton |
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Title: |
Director |
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